From the Hotline: Retaining Online Job Applications

Question: How long is a small employer required to keep job applications submitted through our website? We are in the state of Ohio.

Answer: Before we discuss the records retention requirements for employment applications, here is the federal Equal Employment Opportunity Commission’s definition of an applicant submitting a request for employment through a company website:  “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.”

A best practice recommendation is to maintain applicant records for a minimum of one year from the date of action. Many employers use a common date for records maintenance, typically the date that the position is filled, for ease of administration. That way, one year from the date the position is filled is when the employer can purge applications received for that opening.

Please keep in mind that the time period for retaining records set forth in the various statutes listed below are minimums. Since these records are critical to the employer if its compliance with federal or state law is questioned or if it must defend itself against employment-related litigation, employers may want to retain employment-related records for longer periods.

From a federal compliance perspective, here are the records retention requirements for application materials:

  1. Age Discrimination in Employment Act (ADEA): One year from date of action, or until the final disposition of any legal matter.
  2. Americans with Disabilities Act (ADA): One year from making the record or taking the personnel action, or until the final disposition of any legal matter.
  3. Title VII of the Civil Rights Act: One year from making the record or taking the personnel action, or until the final disposition of any legal matter.
  4. Executive Order 11246, VEVRAA and the Rehabilitation Act (federal government contractors): Covered employers with 150 employees or government contracts that are less than $150,000 must maintain records for 1 year. If the contractor is audited or the application materials are relevant to a lawsuit, the materials must be retained until the resolution of the matter.
  5. Federal Rules of Civil Procedure (Revised effective December 1, 2006): Requires employers to preserve electronically stored information (ESI) once the employer reasonably anticipates litigation (e.g., when an employee complains to Human Resources, or the company receives a communication from an attorney).

Under Ohio records retention laws, there is a specific rule as it relates to apprenticeships as follows: Employers must keep records of chosen and rejected apprentices that allow identification of gender and race. Records must include a summary of the person’s qualifications, basis for evaluation and selection, interview notes and documents, application form, and information detailing the operation of the apprenticeship program. These records must be kept for 5 years (OH Admin. Code Sec. 5101:11-3-04).