Question:

I operate a small business in Carmel. Our business has a web site, and we are inundated with inquiries from job seekers. Sometimes they e-mail their resumes to us, and sometimes they just send an e-mail asking if we are hiring. I know California law requires us to keep records from applicants, but do we have to keep all these e-mailed resumes and e-mailed inquiries?

Answer:

State and federal law generally require an employer to keep documents relating to recruitment, hiring and job placement for at least two years. These requirements apply to a wide range of documents, including job applications, resumes and job inquiries. If there is a claim or litigation against the employer involving hiring practices, these records must be retained until the claim or litigation is resolved.

The Internet has opened new opportunities for employers and job seekers. A 2000 survey by BrilliantPeople.com revealed that 67 percent of companies use the Internet to post job openings. A separate survey by WetFeet.com showed that over 90 percent of student job seekers visit corporate websites during their job search.

The increase in the use of the Internet for job recruiting and placement has caused some confusion for employers who receive many solicited and unsolicited resumes and job applications. In response, in March 2004, the Equal Employment Opportunity Commission (“EEOC”), the Department of Labor, the Department of Justice, and the Office of Personnel Management issued guidance and proposed regulations relating to the definition of a job applicant for Internet and related electronic technology. The EEOC guidance states that “in order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:

  1. The employer has acted to fill a particular position;
  2. The individual has followed the employer’s standard procedures for submitting applications; and
  3. The individual has indicated an interest in the particular position.”

The EEOC is seeking public comment on this definition until May 3, 2004.

The actual regulations, proposed to be an amendment to the Code of Federal Regulations will add a definition of “Internet Applicant.” The proposed rule would apply only to certain federal contractors and would require them to retain Internet submissions of interest and to collect gender, race and ethnicity information from Internet Applicants. The proposed definition of Internet Applicant in the Code of Federal Regulations involves four criteria:

  1. The job seeker has submitted an expression of interest in employment through the Internet or related electronic technologies;
  2. The employer considers the job seeker for employment in a particular open position;
  3. The job seeker’s expression of interest indicates the individual possesses the advertised, basic qualifications for the position; and
  4. The job seeker does not indicate that he or she is no longer interested in employment in the position for which the employer has considered the individual.

Although these proposed rules apply only to covered federal contractors, the guidance is useful for all employers because if an issue arises over who is a “job applicant” in the Internet or related electronic technologies area, courts may look to this statute for a working definition. So, if these rules are used in interpreting all employer’s record keeping obligations, if you post or advertise an open position and receive resumes or inquiries in response, you should keep them for at least two years, but you are not required to keep unsolicited resumes and inquiries, unless you consider the unsolicited job seeker for employment in an open position.
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