A Friendly Reminder from the EEOC—Don’t Toss Your Unselected Candidates’ Applications Just Yet
The EEOC recently filed suit against Coca-Cola Bottling Company of Mobile, asserting sex discrimination in violation of Title VII’s record retention provisions. The complaint alleges that Martina Owes applied in June 2010 for two vacant warehouse positions but was not selected. She complained in her August 2010 EEOC charge that the company hired less qualified male applicants instead. During its investigation, the EEOC requested the company’s employment applications for potential and actual hires dating back to February 2010. The EEOC’s complaint alleges that the company could not produce these applications and thus violated Title VII’s record retention provisions.
This suit provides an opportune moment to revisit federal recordkeeping requirements. Title VII, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA) require covered employers to retain records for at least one year from the date that the record was made or the decision was made, whichever occurred later. This includes all employment records. As to records for unsuccessful applicants, this includes applications, resumes, interview notes, drug screens, employment tests, reference checks, and background or credit checks. The Fair Labor Standards Act (FLSA) and ADEA additionally require employers to maintain all payroll records for three years.
Some employers are subject to longer retention requirements. These include state and local governments, educational institutions, and federal contractors and subcontractors with 150 or more employees, or with a government contract of $150,000. These employers must preserve employment records for two years from the date the record was created or the decision was made, whichever occurred later.
If a discrimination charge or lawsuit is pending, employers must retain all relevant records until the action has reached final disposition, either through expiration of the relevant limitations period, settlement or entry of a judgment.
Depending on the employer, it may make sense to have several different files for each employee—a central personnel file, a human resources file, a payroll file, etc. There is no one correct way, but it is worth considering the best way your company might organize and maintain employee records. For hiring decisions, you should make sure you retain all of the applications or resumes, as well as any screening processes, telephone interviews, skills testing records—in short, anything that will explain the decision making process and why a certain person was selected. Given that many employers have rolling application processes, it is important to maintain the integrity of the file (virtual or otherwise) for each decision. So, if you pull an application considered for a job last month, make sure to leave a copy of that application in the original job file.
When in doubt, employers should err on the side of caution and save documents—including emails. A handwritten note from human resources may seem insignificant now, but down the road, that note could be the linchpin for an employer’s defense to a discrimination charge.