The employee hiring process inevitably involves the creation of many records involving applicants that are ultimately not selected for a position. The question then becomes how long should these records be kept now that the potential hire is no longer being considered by the company? Also, increasingly, to what extent are these records impacted by privacy laws concerned with personally identifiable information (PII)?
The reasons employers elect to keep non-hire records beyond the duration of the selection process are numerous:
- In case circumstances require them to revisit the applicant pool for one reason or another
- They may get mixed into a class of records that relate to the general recruitment/selection process and retained accordingly, depending on how the company records retention schedule is organized
- The potential for litigation often drives company policies concerning the retention of non-hire applicant records
- A multitude of legal requirements with varying retention periods mandate the retention of these records
Whether driven by business or operational needs, common practice, or law, determining the retention period for these records requires consideration and analysis of the various laws likely applicable to any given company.
U.S. federal legal retention requirements relevant to non-hire records generally vary depending on the size of an employer and the type of business they conduct. Under certain federal acts, their applicability depends on the number of employees and status as a private or government entity. For example, some non-discrimination laws require the retention of application forms submitted by applicants and other hiring records, including those related to selection for one year. This period of time may extend longer where cases of discrimination are made. Similar requirements are also mandated at the state level.
Federal contractors are often held to more stringent standards which may require non-hire records to be kept longer. The retention period is contingent upon the number of employees and the monetary value of the government contracts in which the employer is engaged. Dependent on the foregoing factors, the mandated retention period for non-hire records, including resumes submitted for consideration, ranges from one to two years.
While taking into consideration the legal retention requirements, PII privacy is a growing concern and an important factor in setting the appropriate retention period for non-hire records, which are increasingly the subject of employment privacy laws which seek protect PII of current, former and potential employees. Utah is one of the first states to enact such a retention requirement in relation to non-hire records under the Employment Selection Procedures Act. Under the Act, employers are not permitted to keep information collected during the initial selection process for longer than two years after the employer receives the information from the applicant. Similar requirements are likely to appear more often as U.S. states become increasingly aggressive in their efforts to address PII privacy.
Minimize risk and maximize compliance through a careful examination of the state and federal laws applicable to your company with regard to non-hire records. A prudent analysis will require consideration of internal needs and legal requirements as weighted against likely privacy implications for keeping such records longer than needed.
Disclaimer: The purpose of this post is to provide general education on Information Governance topics. The statements are informational only and do not constitute legal advice. If you have specific questions regarding the application of the law to your business activities, you should seek the advice of your legal counsel.