Best Practices for Achieving Talent Success Maturity
Reporting and Record Keeping: What You Need to Know
Contributors to this Article
Former CHRO, Professional Board Member
Libby Sartain is an independent advisor, working with companies on human resource issues. With more than 30 years of experience in human resources, she is also an author and frequent speaker, using her HR leadership and management experience at companies in technology, transportation and manufacturing. She led human resources at Yahoo! and Southwest Airlines during transformative periods. Both companies were among Fortune magazine’s “Best Places to Work” during her tenure. She is the former board chair of the Society for Human Resource Management and is on the board of Manpower Group and is the Vice Chair of the Board of AARP.
With research and insight publicly available from the Society for Human Resource Management (SHRM)
Who it’s for:
HR managers, recruiters
What you’ll get:
A checklist of major compliance areas to review and resources on requirements to maintain recruiting compliance
Why you need it:
To ensure basic compliance with major areas of state and federal hiring laws
When it applies in the talent success process:
Throughout the recruiting process
Federal and state laws require employers to maintain a number of specific records relating to the company’s hiring and employment practices. Failing to collect and retain the necessary records can result in fines, exclusion from government contracts, and other sanctions. Following best practices for record keeping in your recruiting process will help to minimize your company’s risk exposure in the event of a government audit or lawsuit.
Employment Law: What Applies to You
Before developing an employment or labor law compliance checklist, you should take a few minutes to understand which laws apply to your company and what the basic intent of each law is. Below are links to some helpful and valuable information to get you started.
Below we offer brief introductions and links for more details about five key topics:
1. Defining an Applicant: Who You Need to Keep Records On
How you formally define an “applicant” for your organization is crucial for two key reasons.
- It will establish the candidates for whom you need to keep paperwork and records.
- It will determine whom state and federal compliance agents will ask you to provide reports about.
The more tightly you define “applicant,” obviously the less paperwork and record keeping you will need to do. More important, you will reduce the number of “applicants” that EEOC auditors will be able to review.
Also, if your definition of “applicant” is too loose, it will negatively affect your statistics for showing efforts toward affirmative action.
HR record retention is a compliance balancing act. One the one hand, you want to be sure you keep the required files for the required length of time. On the other hand, you don’t want to keep more records than you need to and risk exposing information on an audit that was not necessary to retain. I have always followed the rule of ”Less is Better.”
Regardless, before retaining any record, make sure it is complete, complies with what is required to be retained, and does not include unnecessary information. For example, be sure your interviewers have not marked on interview forms such things as an applicant’s age or race — or even what the candidate was wearing, which would be considered discriminatory in an audit.
Don’t forget the importance of electronic records. Emails, calendars, instant messages, and even texts can be used in court and can work for you or against you. Make sure everyone in your organization knows what should and should not be documented in company systems, and even on their individual company apps and programs. We had to settle one case I was involved in because a text message sent to a job candidate became the “smoking gun” in the case.
Finally, be sure to send all records to shredding on the designated date. No need to keep any records hanging around longer than necessary.
— Libby Sartain, Former CHRO, Professional Board Member
2. Which Laws Apply to Your Company
Although many state and federal requirements depend on the number of employees a company has, as a general rule, employers with 100 or more employees are subject to all major employment laws. Most kick in at the 50-employee level. “Federal Labor Laws by Number of Employees,” from the Society for Human Resource Management (SHRM), identifies all applicable federal laws by employee count, and includes links to federal information about each law.
3. What Forms to Keep — and for How Long
Compliance means not only acting in accordance with the law, but also maintaining records that can demonstrate you have done so. In most cases, you will want to retain these records for a minimum of two years. But you should consult your attorneys or general counsel for more specific guidance.
A good rule of thumb, according to SHRM, is to only keep information that can legally be the basis for an employment-related decision. In the recruiting part of the employee life cycle, that means any documents that relate to screening and hiring decisions for each person your organization defines as an applicant. More specifically, you should keep for the minimum recommended period:
- Job applications
- Job postings
- Interview feedback forms and reports
- Hiring or rejection decisions and actions and related candidate communication
- The recruitment source of each applicant
- The recruitment source for each hired candidate
The DOL’s FirstStep Record Keeping, Reporting, and Notices Advisor is an interactive program that can help you understand your federal record keeping, reporting, and notice requirements.
4. Which Reports to File
Federal laws require employers to regularly file reports with various agencies that may be based on information gathered during the job candidate process. For example, Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees — and job candidates — on the basis of sex, race, color, national origin, and religion, requires employers to file the appropriate EEO-1 form indicating employment by covered categories. Generally applicable to employers with 15 or more employees, including federal, state, and local governments, the EEO-1 is due on Sept. 30 for the current year.
Federal contractors must also file the form VETS-100 and an affirmative action plan if they have more than 50 employees and more than $50,000 in annual federal contracts.
5. Your State Obligations
State laws may also apply to your hiring process. They may create additional obligations or be applicable to companies with fewer employees than similar federal laws require. The resources below can provide insight into state hiring laws that apply to your company
6. Additional Rules for Government Vendors and Contractors
Three additional antidiscrimination rules apply to all federal contractors, as well as federally assisted construction contractors and subcontractors. All of these regulations, plus the ADA when it applies to federal contracts, are administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP).
Here is a brief summary of the laws, with resources for more information.
Federal Executive Order 11246. An Equal Employment Opportunity law signed by President Lyndon Johnson in 1965, Executive Order 11246 has two key provisions:
- Prohibits discrimination in employment decisions by federal contractors and federally assisted construction contractors and subcontractors who do more than $10,000 in federal government business in one year.
- Requires contractors covered by the law to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.”
Section 503 of the Rehabilitation Act of 1973, amended. This law prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. Amended in 2013, the Act also changed the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.
38 USC 4212 — The Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Amended and strengthened in 2013, the Act prohibits federal contractors and subcontractors from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans.
The ADA. Title I of the ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Click here for a summary of OFCCP enforcement procedures related to federal contractors and subcontractors.
In carrying out its responsibilities, the OFCCP uses the following enforcement procedures:
- Offers technical assistance to federal contractors and subcontractors to help them understand the regulatory requirements and review process.
- Conducts compliance evaluations and complaint investigations of federal contractors’ and subcontractors’ personnel policies and procedures.
- Obtains Conciliation Agreements from contractors and subcontractors who are in violation of regulatory requirements.
- Monitors contractors’ and subcontractors’ progress in fulfilling the terms of their agreements through periodic compliance reports.
- Forms linkage agreements between contractors and Labor Department job training programs to help employers identify and recruit qualified workers.
- Recommends enforcement actions to the Solicitor of Labor.
- The ultimate sanction for violations is debarment — the loss of a company’s federal contracts. Other forms of relief to victims of discrimination may also be available, including back pay for lost wages.
Accurate definitions of essential functions, work requirements, and other necessary qualifications not only ensure that you comply with the OFCCP and other laws. They also help you narrow your candidate pool to candidates who are viably qualified — saving everyone involved time and energy.
A Basic Recruiting Compliance Checklist
Regardless of the size of your company, it’s a best practice to conduct a regular review of your sourcing- and recruiting-related notices, records, and procedures to be sure you meet legal compliance and to prevent liabilities and employee lawsuits. Use the checklist here to assess your hiring practices.
LGBT and Veteran Messaging
LGBT applicants are not protected under federal employment laws. Their employment rights vary on a jurisdiction-by-jurisdiction basis. Federal employment law, meanwhile, protect only certain veterans. But LGBT and veterans are hot topics in hiring right now.