Should You Document Non-Selection of Applicants

There is no legal requirement to document the reason of non-selecting an applicant, at least under federal law, and regardless of whether an employer has a government contract or not. There are various legal and strategic reasons as to whether or not such documentation would be desirable.

The following arguments favor documenting the reason for non-selection. First and most importantly, it could assist a company to reconstruct and prove the reason for non-selection, particularly if key personnel are no longer available who could otherwise offer an explanation. Also, the action may discipline the employer to properly make selection decisions, and select or non-select for legitimate, job-related reasons. Likewise, the documentation could facilitate an employer’s proving that it applied its standards equally, by showing other similarly situated persons, such as white males, who were treated in the same manner.

There are some equally compelling reasons not to document the reasons for non-selection. First and foremost, the company will basically be bound by the stated reason for the non-selection. If the company “documents” a legally inappropriate, or inconsistent or false reason, its legal defense will be severely jeopardized. Similarly, in the process of documentation, the company’s data could conceivably prove that a certain type of selection criteria adversely impacts protected categories by disqualifying them to a substantially greater extent than other persons.

The best answer may largely depend on the quality of an employer’s record keeping. If the employer can accurately and lawfully record the reason for non-selection, then the concept is probably a good idea; otherwise, it is not worth the risk. If the company has made egregious errors in record keeping of the reasons of non-selection, it is a bigger problem than it is an advantage, to have proper record keeping. The reason is that it is easier for a company to later “reconstruct” the reasons for the non-selection, than it will be to explain why the record keeping was inaccurate, erroneous, or stated an illegal reason.

There are some possible approaches that warrant consideration that serve to potentially benefit the employer while minimizing the risk of erroneous or illegal record keeping. Some employers use a coding system to state the common reasons for rejecting an applicant, or not considering an applicant, by listing certain general grounds for not hiring an applicant. Such reasons might be as follows:

1. No positions available.
2. Not interested in positions available.
3. Not qualified for positions available.
4. Not qualified for position being sought.
5. Better qualified persons were hired instead.
6. Cannot work hours offered.
7. Rejected our job offer.
8. Unable to communicate effectively in the English language (if required for position).
9. Obviously under the influence of drugs or alcohol during the employment interview.
10. Did not return for follow-up interview or otherwise failed to complete the pre-employment process.
11. Employment interview revealed no interest in type of work.
12. Underage.
13. Has no work permit.
14. Cannot legally work in the United States or cannot provide documentation necessary to complete I-9 forms.
15. Unsatisfactory prior work history.
16. Falsification or omission of significant information on application.
17. Failure to meet (job-related) experience requirements.
18. Relevant criminal conviction record is disqualifying.
19. Did not pass drug or other job-related tests.

The above criteria for rejecting an applicant are generally lawful, at least assuming the employer’s policies are consistently applied and reasonable in their application. There may be some categories that simply might be listed as “miscellaneous.”

SOURCE: Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., Atlanta, GA, March 1999. 404/365-0900.