Does an employer have to keep copies of resumes of all job candidates considered for employment, even those applying through the internet and job search websites?

Does an employer have to keep copies of resumes of all job candidates considered for employment, even those applying through the internet and job search websites?

Yes.  Under the Title VII of the Civil Rights Act of 1964, private employers with 15 or more employees must keep copies of applicants’ resumes for 1 year after they are received or after the hiring decision, whichever occurs later, including internet submissions.  (State laws may require longer retention.)  Unsolicited resumes, however, need not be retained unless the employer considers the resumes for potential positions.  Thus employers should have a policy not to review unsolicited resumes to avoid the application of Title VII’s recordkeeping requirements and possible discrimination claims (by considering some unsolicited resumes and not others).

For government contractors, the recordkeeping rules expressly state that a contractor need not keep a copy of a resume that does not show “that the individual possesses the basic qualifications for the position.”  Thus, government contractors may review resumes online and in response to solicitations to determine if the applicant is minimally qualified without having to keep a copy.  (Note that a 2-year recordkeeping requirement applies to many government contractors.)

Employers that fail to retain records can receive civil penalties for each instance of missing or destroyed records.  Additionally, the EEOC can ask a court to draw an adverse inference from the failure to preserve records, meaning that the court can assume such records show that the employer discriminated against job applicants based on a protected class.  Employers must also preserve all employment records relating to an individual for 1 year after his or her employment, and during the pendency of any claims filed by that individual.  The EEOC has recently prosecuted several cases against employers alleged to have violated these strict recordkeeping requirements.

Many employers, particularly those just over the 15-employee minimum for Title VII to apply, do not know about these recordkeeping requirements, making them vulnerable to these penalties.  Seeking competent advice from good employment counsel will help employers avoid inadvertently violating the law and the negative consequences that can easily flow therefrom.

The above is provided for informational purposes only and should not be construed as legal advice.

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