Don't Trash Resumes: EEOC Sues Coke for Record Keeping Violations

Your company is hiring. It's inundated by resumes, applications, letters of recommendation. Once you've found the perfect match for the job, you can click delete and let the rest of the applications go, right? No way. Keep those suckers around -- for years.

Federal record keeping requirements are strict. Failure to hold onto applications can open you up to litigation, from applicants and from the EEOC, as Coca-Cola learned the hard way a few weeks ago.

Employment Litigation: It's the Real Thing

Coke's most recent troubles came after an applicant at a Mobile, Alabama, bottling plant complained after being denied a job. Back in 2010, Martina Owes applied for two warehouse positions, neither of which she was offered. Owes complained to the EEOC, alleging that Coke hired less qualified men instead of her. When the EEOC opened an investigation, Coke wasn't able to produce the application records of the potential and actual hires.

So, not only does the bottling plant face a suit for sex discrimination, it's also facing charges that it violated Title VII by not preserving application materials related to the positions. Some simple record keeping could have protected the company against those charges, as well as provided a stronger defense against claims of discrimination.

The Fresh, Crisp Taste of Record Retention

Employment and anti-discrimination laws impose a host of record retention requirements on employers. Here's a quick review of the major ones:

• All personnel and employment records: EEOC regulations require you to keep this on hand for at least a year.
• Application materials: the same laws and regulations treat unsuccessful applications as an employment record, which must be kept for a year. That includes material such as application forms, resumes, reference checks, background investigations, and interview notes.
• Payroll records: the Age Discrimination in Employment Act, Fair Labor Standards Act, and other laws require all payroll records to be retained for three years. The same goes for collective bargaining agreements, under the FLSA.
  Time cards, wage rates, schedules, etc: Records that are used to calculate wages should be kept for two years.
• Special rules for government contractors: Companies that operate as federal contractors and subcontractors with 150 or more employees, or a government contract of $150,000 and up, must keep employment records for two years, twice the normal rate.
• Pending litigation: Of course, if a charge of employment discrimination has been made, relevant records must be preserved until the matter is disposed of.

In-house counsel should err on the side of retention. Even insignificant documents (a managers notes after performance review, the 400th resume emailed in response to a Craigslist job posting) could prove essential should a controversy arise somewhere down the line.

Related Resources:

• When Soda Companies Target Minorities, Is It Exploitation? (The Washington Post)
• OSHA Record-Keeping Citations Limited to 6 Mos.: D.C. Cir. (FindLaw's In House)
• In-House Counsel: The Importance of Records Management (FindLaw's In House)
• 5 Steps to Modernize Your Records from Paper Files (FindLaw's In House)