An early paper trail

With the myriad of employment laws currently in existence, it can be easy to overlook the importance of seemingly unimportant items, such as interviews and job applications. But maintaining certain records regarding employees, such as documents related to recruitment, hiring, day-to-day performance and termination, is crucial to avoiding potential liability for unfair hiring practices.

This article will identify records you must keep from the recruiting process. One note of caution regarding the requirements discussed here: This article focuses on federal law and retention requirements. Most state and local laws mirror federal requirements, but some may require longer retention periods. Be sure to check your state and local laws to ensure any longer retention requirements are satisfied.

The recruiting process

The recruiting process is an often overlooked aspect of the employment relationship. Most employers do not pay it much heed because they think they are not liable for what might be said or done with respect to individuals who they choose not to employ. The fact is that such individuals still are protected by federal, state and local employment laws, and treating them improperly can result in serious liability. Such liability can be premised on a number of theories, including unlawful discrimination, harassment, retaliation, privacy violations, contract claims and other similar claims.

The way to avoid such liability is to ensure all actions taken during the recruiting process are lawful and maintain proper documentation of those actions. Documentation often is an employer's saving grace when it comes to avoiding liability.

Ads and job postings

When recruiting job applicants, ensure job opportunities are advertised and applications are collected in such a way to include all individuals, regardless of any protected characteristics. Protected characteristics can include race; color; religion; national origin; gender; age; disability; veteran status; sexual orientation; and other personal characteristics protected by applicable federal, state or local law.

Job postings and advertisements expressly should state your company is an equal opportunity employer (or EOE). And they should include only qualifications necessary for and relevant to the particular job at hand, such as required skills, abilities, experience, education or other background information; physical requirements; and whether a background check, drug screen or other such process is required (but only if such a test is required of all applicants for a position).

Applications also might ask how an individual came to learn about the job opening, particularly if preference will be given to referrals. But be careful: If your existing work force is homogenous in terms of a protected characteristic (such as all Caucasian or all Polish), a referral preference may be viewed as a means of ensuring all applicants have similar protected characteristics. If that is the case, be sure to provide sufficient other avenues to being hired, such as external advertising, and use referrals as just one factor.

Job postings and advertisements should not contain any terms that might suggest reliance on protected characteristics in hiring decisions. They should not:

• Indicate preference based on protected characteristics (young, healthy, recent graduate)
• Use gender specific terms (his, he, etc.)
• Require good health or physical abilities beyond those required by the job
• Require language proficiency or fluency not required by the job
• Require car ownership to get to a job site

Also, any recruiting materials that use photographs, such as company brochures or information packets, should reflect a cross-section of employees with different protected characteristics whenever possible.

All job advertisements and postings must be kept for at least one year from the date a position is filled (and longer if there is any legal claim relating to the hiring decision).

Applications

Providing proper documentation in the form of employment applications is equally important to avoid liability. Employment applications can be a valuable tool in defeating legal claims arising from the recruiting and hiring process. You should require all applicants to complete a standardized application form even if an applicant has provided a resume or other submission expressing interest in a position. This is important: It ensures uniformity and that the same information is being gathered from each applicant in the same way.

Applications should be reviewed periodically by a qualified company representative or attorney to ensure the standardized form being used is up-to-date and lawful regardless of whether the form is self-created or obtained from a service or other source. Employment applications should include:

• A statement that your company is an equal opportunity employer
  
  
• A statement that the application is not a contract and all employment strictly is on an at-will basis, meaning employment can be terminated either by you or the employee at any time, for any reason, and without cause or prior notice (be sure to include this definition on your applications)
  
  
• A question as to whether the applicant is authorized to work in the United States
  
  
• If criminal history is sought, the question must be limited to convictions (not arrests) and only for a specified time period (governed by state law); no information should be provided about convictions in expunged or sealed records; and the information can be considered but not relied on for the hiring decision.
  
  
• A request for the applicant's employment history and explanation of any gaps or periods of unemployment
  
  
• A request for professional references
  
  
• Authorization for your company to check any information provided and to contact references (Notably, the Fair Credit Reporting Act requires special forms and notice provisions if a third party checks the information.)
  
  
• An attachment providing a job description listing all essential functions of the job, including attendance standards, lifting requirements, availability to work overtime or weekends, travel requirements, etc.
  
  
• A signed acknowledgement certifying the information on the application is true and accurate and the applicant can be refused hire or, if already hired, terminated if the information is discovered to be false
  
  
• A statement as to how long the application will be considered to be valid (usually six months to one year)

Other information may be appropriate, too, depending on the particular job, such as information about certifications or particular skills, experience with certain equipment, etc. The key is the information must be strictly job-related and sought for a legitimate, nondiscriminatory reason.

Certain inquiries that used to be commonplace on applications no longer are lawful or appropriate and can lead to serious liability. Applications should not include any inquiries about:

• Date of birth
• School graduation or attendance dates (limit the question to fact of graduation or attendance)
• Maiden name or marital status (limit the question to whether the person has gone by another name)
• Number or ages of children/dependents
• Citizenship
• English proficiency or fluency (unless it is a job requirement)
• Physical description, health history, photographs
• Arrest information (limit the question to convictions to the extent permitted by state law)
• Dates or details of military discharge or current military status

Applications should be reviewed for these and other seemingly innocuous inquiries that seek information about protected characteristics.

An exception will apply if you are a government contractor or subcontractor required by law to collect information for use in an affirmative-action program. But such information must be collected voluntarily; limited to gender, race and veteran status inquiries expressly permitted; and collected in a manner not considered for hiring or, if possible, not seen by individuals responsible for hiring.

All applications for a position—whether or not successful—must be kept for one year from the date on which the position is filled. If an application relates to more than one position, it should be kept for one year from the date the last position is filled.

Interviews

Many employers stop documentation at the point applicants are received. There is no documentation of who is selected for interviews, what selection criteria are used or what occurs during the interviews. This is a mistake. You should document each of those decisions and processes at least in informal notes. In particular, note the reason(s) a successful applicant was chosen for hire. Such documentation will save you headaches should a failure-to-hire claim follow (particularly because such claims could be filed up to 300 days from the date on which a hiring decision is made).

Of course, for interview notes and documented selection criteria to be helpful, they must be lawful. Interviewers should receive specific training from an internal manager or human-resources representative, an outside consultant or trainer, an attorney or other qualified provider regarding lawful and unlawful interview questions and avoiding conversation or inquiries that might be used as the basis for a lawsuit. They should be encouraged to develop a question list or checklist of topics relevant and important to the job at hand; ensure all topics on those lists are lawful; stick to those lists during the interview; and either take notes about those topics during the interview or make a brief note of impressions and decision points after the interview.

All such notes should, of course, be reviewed by you to ensure they do not contain any information about protected characteristics or information that is not job-related. The notes then should be dated and signed by the interviewer and forwarded to a central location for filing along with the job applications. The idea is to garner consistency in terms of information gathered about and asked of each applicant and to support the fact that the process was designed to culminate in a lawful decision based on job-related requirements and abilities.

All interview notes and materials should be retained for one year from the date a position is filled.

Taking precaution

By making sure you are diligent in your record-keeping efforts during recruitment, you help decrease your vulnerability to lawsuits from rejected applicants. For information specific to your company, contact your attorney or a human-resources professional.

Victoria Donati is a partner in the Labor and Employment Law Group of the Chicago-based law firm Neal, Gerber & Eisenberg. Jason Kim is a senior associate attorney in the same group.