All businesses, including architecture and engineering firms and construction contractors, have to fill vacant or new positions from time to time. There are a number of records that such firms must obtain during the hiring process. There are other documents that some employers elect to obtain, like drug and alcohol tests, credit reports and other background reports. There are legal requirements for how long each of these documents must be kept and how they must be destroyed.
Employment Application and Resume.
You may have posted your job opening on a job website, a social media site, college alumni boards, or with the local chapter of a trade group. Regardless of where you have posted the ad, you need to keep a copy of the ad for at least one year after the date of the hiring decision.
Why? Because various federal laws require retention of hiring documents. Title VII and the Americans with Disabilities Act apply to employers with 20 or more employees. The Age Discrimination in Employment Act applies to employers of 15 or more employees. All three laws require that hiring records for each position be retained for at least one year from the date of the hiring decision – the date that the position was filled. Even if your company has less than 15 employees, it is a good idea to retain a copy of the ad in your files for at least one year.
These laws require that design and construction firms maintain documents relating to the hiring process. This includes a wider array of materials than you might think like: any application, resume, letters of recommendation, portfolio samples, and interview notes.
Form I-9 is Required.
All employers are required to complete and retain Form I-9 for every person that they hire. The Form I-9 must be maintained for three years after the hire date or for one year after termination, whichever date is later. These forms should be stored separately from other personnel files.
South Carolina Terms of Employment Notice Is Required.
For architects, engineers or contractors working in South Carolina, you must notify each employee about the basic terms of employment at the time that they are hired pursuant to South Carolina Code Section 41-10-30. If the terms are modified (other than for a pay increase), you must create a new form and have it signed by your employee.
The South Carolina LLR has created a Terms of Employment Notice Form for this purpose that you can find at www.llr.state.sc.us.
This code section does not say how long the form must be kept. You should keep this form for the entire duration of employment and for a period of three years after termination.
Credit Reports
Some employers obtain credit reports as part of their investigation of job applicants. These credit reports must be maintained for one year.
Pre-Employment Drug Tests
If you drug test job applicants, those test results must be kept for one year from the date of the test even if the applicant was not hired. There are special rules if you are subject to DOT regulations.
Criminal Background Check
You should maintain any criminal background check for at least one year from the date that a hiring decision as made.
The Time is Up – How Do We Destroy These Documents?
Shred, Shred, Shred. Pre-employments documents contain personal identifying information such as social security numbers, birth dates, home addresses and the like. All of these documents must be shredded when they are destroyed.
Keep in mind that some of this information may be kept on your servers. You need to work with your IT experts to assure that any information that you plan to delete is completely deleted from your computer system and is not accessible to anyone other than those involved in the hiring process.
If you have any questions about document retention of other personnel issues, we would be glad to help you. The attorneys of Gibbes Burton are passionate about helping professionals and businesses to minimize risk and build success.