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Lesson 03: Legal Aspects of Recruiting, Hiring, and Promotion

L03 – The Application Process

More rules and restrictions apply to the application process than one may think. Employers are free to decide whether applications will be accepted or retained when no positions are available. However, there are requirements when an application is submitted for a position that is available and how long they will be accepted and retained. The main concern is to avoid disparate treatment by adhering to a consistent policy that applies to all. No one should be discouraged from applying.

Applications and other records produced in the recruiting process must be kept for at least one year from the date when a hiring decision was made. When a complaint alleging discrimination is filed, records must be retained until there has been a final disposition. Records related to people hired must be retained throughout their employment and for at least one year thereafter. (29 C.F.R. 1602.14 (2017)

What defines an applicant? When does someone staring at a HELP WANTED sign in the window of that two-person diner mentioned earlier go from a passerby to an applicant? The federal government provides a broad definition that includes everything from completing an application to making interest known by other means. That might mean a nod from that person reading the sign at the diner. When someone voluntarily withdraws their application, formally or informally, they are no longer an applicant. (44 F.R. 11998 (March 2, 1978)

Use of the Internet for recruiting and acceptance of applications has prompted employer concerns about retention practices and requirements. A definition applying to general circumstances has yet to be issued. However, specifics apply to federal government contractors with affirmative action plans:

an Internet applicant “is an individual who expresses interest in employment via the Internet or other electronic data technology, is considered by the contractor for employment in a particular position, possesses the basic qualifications for the position, and does not remove him or herself from consideration.”

Throughout the application process there is much information shared between the employer and potential candidates. This requires attention paid to be mindful of these interactions and information that can be given as a result. Let’s look into this next.


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