Q: I recently ran an advertisement for a position I was recruiting for. I got about 200 resumes most of which didn't meet our requirements for this or any other job that we have. Can I just throw those out, or do I need to retain them for some amount of time?
A: Many statutes specify the types of records employers must keep in order to prove compliance, and the length of time for which such documents must be retained. However, there is no specific obligation to retain resumes for un-hired applicants.
While employers do have a duty to refrain from any recruiting practice which excludes any protected group, Title VII requires only that an employer provide equal job opportunities regardless of an applicant's race, color, religion, sex, or national origin. It does not require an employer to consider whether protected group members are proportionately represented in the employer's work force in comparison with their representation in the community. It does not require statistical analysis of resumes for protected group members - information generally not available in a resume in any case.
The Immigration Control and Reform Act requires employers to maintain I-9 forms on employees for a period of three years after hiring, or one year after the employee is terminated, whichever is later. If an applicant is not hired, the I-9 form completed by that person must be maintained by the employer for three years from the date of the applicant's referral for the position. Similarly, the Employee Polygraph Protection Act requires employers to maintain records of the reasons and circumstances under which they requested an employee to take a polygraph exam, the results of the test, and documents indicating that the employee was informed of his or her rights under the law. These must be preserved for three years, and the employer must guard against unauthorized disclosure of such information.
Many state laws also require the maintenance and protection of employment records. For instance, California requires employers maintain payroll records for two years; Minnesota has ruled governing disclosure of employee drug testing information; and Washington requires that for each employee, the employer maintain a record of name, address, occupation, dates of employment, rates of pay, amounts paid each period and the hours and days worked for three years.