A recent court ruling serves as a reminder of the importance of compliance with laws or regulations pertaining to the retention of applications and other personnel documents. On January 8, 2016, in the case of Austrum v. Federal Cleaning Contractors, Inc. d/b/a a Federal Building Services, Inc., Case No.: 14-cv-81245-KAM, the Southern District of Florida issued a ruling that an adverse jury instruction was warranted because an employer failed to retain an employment application in accordance with the Equal Employment Opportunity Commission’s (“EEOC”) regulation, 29 C.F.R. § 1602.14. This regulation provides in pertinent part: “Any personnel or employment record made or kept by an employer … shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.” The regulation goes on to provide that in the case of an involuntary termination, personnel records for the employee “shall be kept for a period of one year from the date of termination.” Further, where a charge of discrimination is filed, or an action brought by the EEOC or Attorney General, such records must be preserved until the final disposition of the charge or action (“the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action [is instituted,] the date on which such litigation is terminated”).
As employers receive applications for employment, including unsolicited applications, they must consider the various laws containing document retention requirements that may apply when deciding how to manage such applications. A few examples of things that should be considered and addressed in policies and practices are: how long an application is considered to be active and will be considered for available positions; how long the application must be retained; how unsolicited applications are treated compared to applications which are solicited; and how applicants are notified of these policies and practices.
The EEOC regulation at issue in the Austrum case is an example of one of many laws and regulations that contain document retention requirements. The Austrum case serves as a reminder of the significance of compliance with the numerous record retention requirements.