What do you do with employment applications for candidates that you did not hire? Do you put them in a files or throw then out? The anti-discrimination laws may require you to keep for at least a year these applications, along with resumes, interview notes, drug screens, employment tests, reference checks, and background or credit checks.
The 1964 Civil Rights Act (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. If you have 15 or more employees, you are required to keep these records under the ADA. The requirement under the ADEA applies to employers with 20 or more employees and to those with 25 or more employees under Title VII and GINA. Federal contractors and subcontractors with 150 or more employees, or with a government contract of $150,000 must preserve employment records for two years. In addition, the Fair Labor Standards Act (FLSA) and ADEA also require employers to maintain all payroll records for three years.
The risk is real. The Equal Employment Opportunity Commission (EEPC) recently filed a lawsuit against a Coca-Cola bottling company in Mobile Alabama for failure to produce these records. During an investigation of a complaint alleging gender discrimination, the EEOC requested the company’s employment applications for potential and actual hires dating back to February 2010. The EEOC files a complaint because the company could not produce these applications, which violated Title VII’s record retention provisions.
For hiring decisions, you should make sure you retain anything that will explain the decision you made and why a certain person was selected or not selected. All of the applications, resumes, screening processes, telephone interviews, skills testing records and emails should be maintained. Moreover, each flooring dealer and contractor should periodically have its legal counsel review its document retention program to ensure it complies with all federal and local requirements.
Notice: The purpose of this blog is to review the latest developments that are of interest to clients of Mr. King. The information contained is abridged from legislation, court decisions, and administrative rulings and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.