Documentation and file retention are major aspects of the hiring process. One of the primary reasons to keep hiring records on file is to have documents to use in your defense in case of a discrimination claim.
Having documentation of your process and the candidates who were considered will enable you to show that the process was appropriate and legal and not discriminatory.
There are several laws that prohibit discrimination in hiring:
- The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities.
- Title VII of the Civil Rights Act prohibits discrimination based on race, color, religion, sex, and national origin.
- The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals over the age of 40.
To be able to show that practices weren’t discriminatory, employers should keep all hiring records. These include records of all applications, résumés, documentation from the interview (including notes), background check permission records, results of background screening, drug tests (if applicable), results of any other required medical exams, the job description, the job post or ad, offer letters, rejection letters, reference checks, credit checks if required, and any other records that were part of the hiring process.
Generally speaking, these records should be kept for at least 1 year. The 1-year time frame starts after the final hiring decision is made, not when the job is posted. There are some exceptions, such as:
- Drug tests that were required for transportation jobs should be kept for 5 years.
- Résumés that were received when no job was posted and were not utilized or reviewed for any position do not have to be kept. (Be consistent in this process.)
- If employment contracts are used in the hiring process, those should be kept for longer. Consult legal counsel for specifics depending on your situation if you use employment contracts.
- In case of a lawsuit, records must be maintained throughout the duration of the case, starting the moment the employer is aware of it, even if the case continues after the documents would have normally been purged. This retention requirement may include files related to the topics under investigation, not just those related to the initiating party.
Keeping these types of records for at least 1 year will fulfill Equal Employment Opportunity Commission (EEOC) obligations for hiring records. Of course, other records after someone is hired are subject to other requirements. This recommendation is only for the documents specific to the hiring process. Train everyone involved in the hiring process about document retention to be sure you’re compliant and consistent.
Note, as with most laws, state and local equivalents are often stricter than those at the federal level. Be familiar with the state and local laws in the areas you operate to know if higher standards must be maintained.
A couple quick tips:
- It may be advisable to keep some types of records entirely separate from the rest of the personnel files. For example, medical records—including drug screening as part of the hiring process—should be kept separate to maintain greater confidentiality over the information. Access to these types of records should be limited.
- Keeping records far longer than required is not necessarily beneficial. On the off chance that a lawsuit is filed, having more records available than necessary may open the organization to additional scrutiny and will mean more records will be reviewed for problems. Disposing of records in a timely manner is prudent.
What is your process for ensuring hiring records are maintained as required?
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.