8 Types of Hiring Records to Keep

From resumes and hiring records to attendance records and health insurance forms, HR professionals have a lot more piling up on their desks these days. The HR department is the repository for employee files and as they come and go, this wealth of information can turn even the most organized office into a filing nightmare. Additionally, personnel records often contain sensitive information, so you have to handle them carefully. They can not only prove you’re in compliance with government record-keeping requirements, but they also can make or break your case during disputes with current or former employees.

You don’t want to end up on an episode of “Hoarders”, but you also don’t want to get rid of any document that’s vital to your organization. Do you know what hiring records or other employee records to collect, what to file, and especially what can be thrown away? When you do, you’ll feel organized and, more importantly, you’ll have a legally safe system in place for all of your record-keeping requirements.

In a BLR webinar titled “File or Forget? Legal and Practical Recordkeeping Rules for HR,” Allen Kato outlined some guidance for employers on what hiring records to keep.

What Hiring Records Should You Keep?

Employers often wonder what hiring records to keep. Should you keep every application? What about the notes you take during the interview process? Kato outlined the relevant hiring records and explained what to do:

1. Job descriptions and job postings should be kept, as they identify the essential functions of a job and establish the minimum necessary qualifications of applicants. Kato explained that “job descriptions are just critical in the defense of an employee lawsuit (and that’s going to encompass job postings describing the position as well).” Remember, however, to ensure that the job description is dated – it will be far less useful to you if it’s not – and consider even giving it a different version number when it changes. Kato continued: “It’s even a best practice to have the employee review and sign the job description, acknowledging that this is what the job entailed.”
2. Job applications, interview notes, and any other selection records should be kept because they show the relevant information for the basis of the hiring decision. This can help you in documenting valid reasons for selecting and rejecting specific applicants. You should also have the job candidate sign the application. Kato explained that there is, however, a caveat for HR professionals to remember: “before filing the interview records away, review the contents.” You don’t want to have record of a discriminatory decision kept on file. (Obviously, if you find such information in interview notes, use this opportunity to correct the situation.)
3. Original offer letters should be kept, as they establish the terms and conditions of employment. Ideally, your offer letter will also confirm the at-will status of the employment relationship. The letter should be signed and dated. Just like the job descriptions, the dating is particularly important in the context of offer letters. This is because the Americans with Disabilities Act (ADA) only allows medical examinations after an unconditional offer of employment.
4. Reference and background check documents should also be kept, particularly signed consent forms in compliance with the Fair Credit Reporting Act (FCRA). Also, keep the results of the check.
5. I-9 verification of identity and authorization to work in U.S. should also be kept for the legally required minimum amount of time. The law requires you to keep the I-9 itself, but does not require you to keep the copies of supporting documents, though of course you may choose to do so.
6. Drug and alcohol tests and physical examination records that should be kept include the signed consent for any test or exam (and consent for disclosure of results to the employer). Regarding the actual results, those records should be treated like medical records and handled accordingly by keeping them in a separate folder.
7. Documentation of your agreements relating to intellectual property should also be kept. Kato noted: “If you are an employer in an industry that has patented inventions or copyrights – or indeed all employers if you give the employees access to company trade secrets, proprietary, or other confidential information – it is critical to enter into an invention assignment or other form of intellectual property agreement the point of hire.” Keep the original copy.
8. Finally, the employee acknowledgment of receipt of the employee handbook (both upon hire and of later versions) should be kept. “Employers should have an employee handbook that explains your company’s policies and procedures. Legally, this is significant because the handbook and its contents can provide defenses in litigation if there’s any question over what was or is the company’s policies or procedures.” Kato explained. Remember to always have policy changes dated and communicated.

Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.