Don't be too quick to shred hiring documents

Q How long do we have to retain employment applications for candidates who have been interviewed but weren't hired? Do we need to keep them at all?

A Numerous federal employment laws specify how long covered employers must maintain job applications, résumés, and other application materials. If your organization is covered by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA), you must retain applications and related interviewing and hiring documents for all candidates for at least one year from the date of the hiring decision, i.e., the date the position was filled. (Title VII and the ADA apply to employers with 15 or more employees. The ADEA applies to employers with 20 or more employees.) This retention requirement applies to all applicants, regardless of whether they were interviewed or ultimately hired.

If your organization is a federal contractor or subcontractor, you may be subject to longer record retention requirements. Executive Order 11246 requires a two-year record retention period from the date of the hiring decision for federal contractors or subcontractors with 150 or more employees and at least $150,000 in federal contracts or subcontracts. Federal contractors or subcontractors with fewer than 150 employees or less than $150,000 in contracts must retain hiring records for only one year.

In all cases, if you receive a charge or claim of discrimination related to a job applicant or an employment decision, you must retain all relevant application and hiring records until the final disposition of the complaint or the conclusion of any lawsuit. That includes retention of documents not only for the person who filed the complaint but also for everyone who applied for the position at issue.

Q Do owners of a company who are also employees on the payroll need to complete an I-9 form at hire? If they didn't (and it has been more than three days since they were hired), what is the best practice at this point? Should they complete it now?

A Form I-9 requirements are triggered when an employer hires an individual for employment in the United States. Accordingly, all employees who were hired after November 6, 1986, including owners of the company, must complete a Form I-9 at the time of hire.

As you point out, I-9s must be completed within the first few days of employment. Section 1 of the form must be completed and signed by the employee no later than the first day of employment. Section 2, which requires the company's review of acceptable employment verification documents, must be completed and signed by the employer within three business days of the date of hire (i.e., the first day of work for pay).

According to the U.S. Citizenship and Immigration Services (USCIS), a new Form I-9 can be completed if major errors need to be corrected (e.g., entire sections were left blank or Section 2 was completed based on unacceptable documents). The USCIS recommends that you include a note in your files explaining the reason you made changes to an existing I-9 or completed a new form. Having your company's owners complete a Form I-9 late will not eliminate potential penalties associated with noncompliance should you be audited, but it may help show that your failure to complete the required form wasn't willful.

Also, remember that the Colorado Employment Verification Law applies to employees who were hired on or after January 1, 2007, and work for employers that do business in Colorado. The law requires employers to submit an affirmation on a form provided by the Colorado Division of Labor (CDOL) within 20 days of hiring a new employee. The law also requires employers to retain a written or electronic copy of the identity and employment authorization documents provided by the employee.

The CDOL advises that if you fail to meet the law's requirements in the 20-day period, you should not submit an affirmation or ask to copy the Form I-9 documents at a later date. Thus, if the owners of your company were hired on or after January 1, 2007, and are subject to the law, you are subject to fines for violating the law. The best practice is to put procedures in place to ensure compliance going forward.

We want to hear from you! Do you have perplexing employment law issues that you would like us to address? Each month, the editors will answer questions submitted by our readers. Please e-mail your questions to Emily Hobbs-Wright at ehobbswright@hollandhart.com, and we'll make every effort to answer them in the newsletter.