Keeping applications on file

Question: How long do I need to keep unsolicited resumes and applications on file? How long should I keep resumes and interview notes for people we interviewed but did not hire?

Answer: Unlike personnel records (the retention of which is largely regulated), there are no specific requirements for retention of resumes or interview notes. However, human rights legislation allows complaints based on discrimination in the hiring process. In such cases, complainants may point to the employer’s hiring practices, including its use of resumes and interview notes, to allege discrimination. An employer who can show sound, uniform practices and can produce evidence of what took place during the hiring process is in a better position to defend itself.

Each workplace should establish a policy for dealing with unsolicited resumes and apply it consistently. Failure to have a policy, or to apply that policy uniformly, opens the employer up to a potential successful discrimination complaint. One approach is to reject all unsolicited resumes. Without a detailed job posting outlining the desired qualifications of the candidate, it becomes difficult for an employer to justify why a particular candidate became of interest while another did not. An employer who keeps some resumes, but discards others, runs the highest risk of a discrimination complaint.

If the employer needs to accept unsolicited resumes, all should be retained. A strict written policy should be developed detailing the purpose for which unsolicited resumes are kept, for how long and if they will be reviewed when a job opening arises.

It is also in the employer’s best interest to keep resumes and interview notes for candidates long enough that they can be produced if a human rights complaint is made. The limitation period for bringing a human rights claim differs across Canada, ranging from six months in Manitoba and British Columbia, to two years in Quebec and Saskatchewan, with a period of one year in the other provinces. Employers should familiarize themselves with their jurisdiction’s human rights legislation and keep resumes and interview notes at least as long as the complaint period remains open. Employers should also be aware in some circumstances, a complaint may be considered outside the limitation period.

Not only should employers keep interview notes, it is advisable to develop sound interview practices that ensure nothing in those notes is discriminatory. Two contrasting cases demonstrate the effects that interview notes can have. In Premakumar v. Air Canada, the Canadian Human Rights Tribunal decided the interview notes provided a poor reflection of the interview and the comment “why did we hire this guy at all?” referencing the candidate’s previous position with the company, was discriminatory. The employer was ordered to pay lost wages and benefits in addition to $4,000 in special compensation.

By contrast, in Folch v. Canadian Airlines International, the tribunal found the notes and comments of each member of the interview board clearly demonstrated the basis on which candidates were being assessed and the precise reasons why the applicant in question was deemed to lack the necessary skills for the position. The tribunal was able to carefully scrutinize the hiring decision and to determine that the application had been fairly considered.

For more information see:

•Premakumar v. Air Canada, 2002 CarswellNat 2190 (Can. Human Rights Trib.)
•Folch v. Canadian Airlines International, (1992) 17 C.H.R.R. D/261 (Can. Human Rights Trib.).

Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].