EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

January 11, 2011

Record keeping: Records kept by contractor/third party

Dear:

This is in response to your letter dated December 15, 2010, requesting that the Equal Employment Opportunity Commission provide clarification about record keeping requirements. Your clients conduct video interviews of job applicants using your _________ video interview tool. The electronic system contains the video interview of a candidate, the candidate’s resume, questions asked of the candidate and scores made by the employer. You ask if allowing your clients access to the information in the electronic interview system complies with EEOC’s record keeping regulations. As an example, you ask if your clients can demonstrate compliance during an audit by showing the auditor the applicant information that is stored in your electronic interview system.

As you know, the EEOC enforces the federal laws that prohibit employment discrimination by employers, employment agencies, and labor organizations on the bases of race, color, religion, sex, national origin, age, disability, or genetic information. Statutes enforced by the EEOC include Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., Title I of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., the Equal Pay Act of 1963, as amended (EPA), 29 U.S.C. § 206(d), the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq., and the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. As part of its enforcement responsibilities, the EEOC investigates charges of discrimination filed with it. The EEOC does not have the authority to audit employers apart from its charge investigations.

EEOC’s record keeping regulations require that “any personnel or employment record made or kept by an employer…shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later….Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General,…the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or action.” 29 C.F.R. §1602.14 (Title VII, ADA and GINA). There are similar requirements under the Age Discrimination in Employment Act. 29 C.F.R. § 1627.3.

We believe that employers comply with the EEOC’s record keeping requirements as long as they have unfettered access to all of the personnel or employment records pertaining to their applicants and employees for the periods of time specified in the regulations. We believe that your company’s retention of the application records you maintain in your electronic interview system on behalf of your clients complies with EEOC’s record keeping requirements, provided that your clients can access the application records at any time during the retention periods prescribed, including accessing them in the event of an EEOC investigation of a charge of discrimination.

We hope this information is helpful to you. This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.

Sincerely,


Thomas J. Schlageter
Assistant Legal Counsel
Advice and External Litigation Division

This page was last modified on February 2, 2011.

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