Retention Of Applications
Employers Are Required To Retain Documents Related To The Application Process
With regard to recordkeeping responsibilities, OFCCP regulations require that federal contractors maintain for a period of two years from the making of the record or the personnel action, all job postings and advertisements, applications received, any interview notes, test and test results, records of job offers, and the applications themselves. Contractors with fewer than 150 employees or a contract of less than $150,000 need only keep these records for a period of one year. See 41 CFR 60-1.12(a). In addition, OFCCP regulations and the Uniform Guidelines on Employee Selection Procedures (UGESP) obligate covered federal contractors to compile and maintain applicant data in order to ensure that the selection process used during hiring does not result in discrimination against a particular protected group. See 41 CFR 60-1.12, 41 CFR 60-3.4, and 60-3.15. Accordingly, a contractor must be able to identify the race, gender, and ethnicity (Hispanic or non-Hispanic) status of all applicants. Self-identification is the most reliable method and the preferred method for compiling such information about an individual. Contractors are encouraged to use tear-off sheets, post cards, or short forms to request demographic information from applicants that can be maintained separate and apart from the applications themselves. For more information on how to comply with OFCCP’s regulations regarding the collection of race, gender, and ethnicity data, see OFCCP’s directive entitled “Contractor Data Tracking Responsibilities” dated April 21, 2004 at http://www.dol.gov/esa/regs/compliance/ofccp/directives/dir265.htm. Note that OFCCP is currently engaged in rulemaking to address recordkeeping requirements regarding internet applicants and has issued a proposed rule. See Obligation to Solicit Race and Gender Data for Agency Enforcement Purposes, 69 Fed. Reg. 16446 (March 29, 2004), which can be found at http://www.dol.gov/esa/regs/fedreg/proposed/nprm_frn.htm. In addition, the agencies that issued the UGESP (including the Department of Labor) also published proposed guidance regarding recordkeeping and internet applicants. See Agency Information Collection Activities: Adoption of Additional Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures as They Relate to the Internet and Related Technologies, 69 Fed. Reg. 10152 (March 4, 2004), which can be found at the Government Printing Office’s website. http://edocket.access.gpo.gov/2004/04-4090.htm.
In addition to the requirement to collect demographic data for applicants, the regulations implementing Section 503 require employers to invite individuals to self-identify so that they can take advantage of the company’s Affirmative Action Program for individuals with disabilities. For the same reasons that disability-related questions may not be asked prior to extending a job offer, the invitation to self identify must be given after an individual is made a job offer, but prior to the individual starting work. For more information regarding the invitation to self identify and when the invitation must be made, see 41 CFR 60-741.42. It is available on-line at http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-741/41CFR60-741.42.htm. For a sample invitation to self identify, see http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-741/41CFR60-741.84.htm. Note that similar regulations exist under VEVRAA governing when employers may invite disabled veterans to self identify. See 41 CFR 60-250.42, available on-line at http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-250/41CFR60-250.42.htm.
In addition, VEVRAA requires that contractors invite applicants to self identify as a protected veteran regardless of whether s/he has a disability. Such invitation may be done at any time before the applicant begins employment. For a sample invitation to self identify for both specially disabled and other covered veterans, go to http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-250/41CFR60-250.85.htm.