Documents, documents, documents: What to keep, what to shred

February 19, 2014
HR Hero

The hiring process has a way of creating a lot of paperwork. A single job opening can bring a flood of resumes, cover letters, and applications from a horde of hopefuls. Once the decision has been made, the question becomes what to do with the pile of documents the hiring process generates. 

Recently, a group of attorneys focusing on employment law topics offered answers to the question of how long to keep documents on job candidates who were interviewed but not hired.

One year minimum. A few federal laws spell out how long to keep hiring documents. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) stipulate that covered employers must keep hiring records for at least one year. Under the ADEA, documents should be kept at least two years if the employer knows the applicant or employee is at least 40 years old.

Title VII and the ADA cover employers with at least 15 employees, and the ADEA covers employers with 20 or more employees.

Government contractors also have record requirements. Executive Order 11246 requires contractors with fewer than 150 employees or a contract of at least $150,000 to retain hiring documents for at least one year. Contractors with 150 or more employees and a contract of $150,000 are required to keep records for two years.

Ryan B. Frazier, a Shareholder with Kirton McConkie in Salt Lake City, Utah, reminds employers that collective bargaining agreements also may specify how long applications and other hiring documents are to be kept. He recommends keeping applications for at least three years. “That way, you can be sure that you have complied with your legal obligations,” he said.

Reggie Gay, a shareholder with the McNair Law Firm’s Greenville, South Carolina, office, advises keeping employment applications for candidates who are interviewed but not hired for at least two years from the date the hiring process is completed. “That means two years from the date the job is filled,” he says. “By doing so, you will preserve documentation in case an applicant claims she was subjected to discrimination in the hiring process.”

File more than applications Gay also reminds employers to retain more than just applications. Resumes, interview notes, question outlines, and other materials prepared or used during the hiring process should be filed.

For individuals who are hired, Gay says employers should keep documents for the duration of their employment plus two years after their employment ends. “Also, be aware that if a discrimination or unlawful employment practice charge is filed against you, applications and other records must be kept until the matter is resolved,” he says.

Jason Ritchie, a partner with Holland & Hart in Billings, Montana, also stresses that document retention requirements change when someone files a charge or claim of discrimination. In such a situation, employers “must retain all relevant job applications and hiring records until the final disposition of the complaint or the conclusion of any lawsuit,” he says. “That means you must retain documents for not only the person who filed the complaint but also for all individuals who applied for the job at issue.”

Karen Gwinn Clay, an attorney with The Kullman Firm in Jackson, Mississippi, says employers should retain documents to protect the organization against any discriminatory failure-to-hire or failure-to-promote claims. “In addition to keeping applications, you will also want to retain resumes, job postings, and any other documents related to the selection process,” she says.

In addition to federal law requirements, employers need to be aware of any state laws affecting the hiring process and document retention.

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