What constitutes an "applicant"?

I was reviewing the EEOC's RECORDKEEPING GUIDANCE CLARIFIES DEFINITION OF "JOB APPLICANT" FOR INTERNET AND RELATED TECHNOLOGIES page and the first bullet point for determination states,
"the employer has acted to fill a particular position"

The majority of our applicants and successful hires come to us via word-of-mouth. Since that is the "norm", even if we don't post/publish an ad seeking applicants should those who seek us out still be counted as applicants for the purpose of record keeping?

I guess what I'm getting at, is this, do we need to retain all of those applican't's resumes for at least one year?

Comments

  • 13 Comments sorted by Votes Date Added
  • We have defined applicant as a person who properly completes and submits a company application. We do not accept applications unless we have a position open. Just as a matter of course, any unsolicited resumes I receive are kept for one year after the year they were received. You never know when you might need to refer back to them. Also, when I have an open position I never interview anyone until they have completed an application, even if they submitted a resume.
  • The only legal guideline regarding applicants that I know of is for the internet applicant. If you don't already have one, I recommend that you establish a formal policy that specifically defines an applicant for your company, how applicants and resumes/applications are handled, and how long those records are kept. You can find a sample policy on HRHero.

    Federal discrimination laws protect applicants as well as employees regardless of your definition of “applicant.” It is important that you define who you consider to be an employment “applicant,” because once a person becomes an applicant you may need to keep certain employment records.

    I agree with Joanne. It's a good idea to have a standard job application and to require all applicants to complete it - even if you have received an applicant’s resume. Having a standard employment application helps to ensure fairness in your hiring process by asking for the same information from every applicant.

    Some companies return unsolicited resumes to the sender. Some file them and some trash them. I always liked to keep them on file as unsolicited resumes. If the person had exceptional experience that I thought could be needed at some point, then I also kept a copy in a reference file for that area of the company.

    Sharon
  • Probably half the stuff that goes in my shredder relates to unsolicited resumes.
  • [quote=ACU Frank;717287]Probably half the stuff that goes in my shredder relates to unsolicited resumes.[/quote]

    I'm almost afraid to ask what the other half might be; but, what the hay! What else are you shredding, Frank?

    Sharon
  • His hair?

    Was that question out of line?
  • Please don't tell me you guys don't shred stuff...
  • I have a small paper shredder under my desk. It is very handy.
  • I've had two different small paper shredders under my desk in the past and I burned both of them up using them so much. We have a lot of sensitive stuff that needs to be shredded around here, so we got a big heavy-duty shredder for our department and so far I haven't managed to break that one!
  • Great question; we touch on this a bit in our Employment Practices Self-Audit Workbook, and will also be covering this very issue in our upcoming book HR Guide to Employment Law, which will be available later this fall.

    As Sharon pointed out, most of the guidance with regard to applicants has been specific to Internet applicants. For "good ol' fashioned paper applications," though, the only real guidance (assuming we aren't dealing with a federal contractor) comes from a Question and Answer document the EEOC released in 1979.

    This document states that the determination of who is an applicant is dependent on (1) the employer's practices and procedures and (2) that the applicant has indicated an interest in being considered for hiring, promotion, or other employment opportunities.

    Still less than clear, right?

    The general interpretation of this by labor attorneys has been that an applicant:

    - Must follow the employer's practices and procedures and
    - Express an interest in employment.

    Which means that if your standard practice is only to accept applications when you have an opening, then the fact that unsolicited resumes that arrive when no opening is available would not, by itself, mean those individuals were applicants.

    In your case, then, if your company has set a standard practice of accepting applicants via word-of-mouth, then the safest bet would be to treat these people as "applicants" for EEOC purposes.
  • Thank you, Holly. This has been a really confusing issue for many and you really clarified it. Now I know why our policy was set up the way it was and will have no trouble following it in the future.
  • Excellent, very glad to help! :)

    It's an issue that, unfortunately, has gone by the wayside a bit, since I think the presumption now is that Internet applications are where any remaining confusion lies, so any clarification efforts from the EEOC have been toward those. Yet in the meantime plenty of employers still accept and prefer written applications.
  • Thank you for the advice. I suspected that while my employer is loathe to committing anything to a manual (he thinks having one is a bigger risk than not having one, I think that is crazy but I am employee he is executive) that means anything we do as a repetitive practice somehow by default becomes our policy. I guess his approach is kind of like a common-law marriage approach (not recognized in my state but that is a different discussion.) If we stick with something long enough it becomes policy.
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