Is your company aware that federal regulations require that employers retain certain personnel and employment records related to its selection procedures? A recent lawsuit by the Equal Employment Opportunity Commission (EEOC) underscores not only that these record-keeping requirements exist, but demonstrates the EEOC’s newfound willingness to pursue litigation against companies based upon their failure to maintain these records.
The recordkeeping regulations can be found at 29 C.F.R. Part 1602, entitled, “Recordkeeping and Reporting Requirements Under Title VII, the ADA and GINA.” Specifically, 29 C.F.R. § 1602.14 provides, in relevant part, as follows:
Any personnel or employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) 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. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.
In addition, 29 C.F.R. § 1607.4 requires employers to maintain records disclosing the impact that their selection procedures “have upon employment opportunities of persons by identifiable race, sex, or ethnic group.”
New EEOC Lawsuit
On July 10, 2015, the EEOC filed a lawsuit against Crothall Services Group, a nationwide provider of janitorial and facilities management services, for allegedly violating Title VII’s recordkeeping requirements by “failing to make and keep required records and other information that will disclose the impact that its criminal history assessments have on persons identifiable by race, sex, or ethnic group.”
The lawsuit arose out of an EEOC investigation into Crothall’s criminal background check procedures. The EEOC issued a subpoena for the relevant employment records and, when they were not provided, initiated a subpoena enforcement action in Pennsylvania federal court seeking the records. When it was discovered that Crothall did not maintain such records, the EEOC sued Crothall for its purported failure to keep records required under 29 C.F.R. § 1607.4.
The EEOC’s Regional Attorney Debra Lawrence issued a statement that, “Federal record-keeping requirements ensure that certain employers make and keep records that disclose the impact of their selection procedures. EEOC’s enforcement of the record-keeping requirements is important to the agency’s commitment to eliminating discriminatory barriers in the workplace.”
What is really significant about this lawsuit is that the EEOC is taking the position that 29 C.F.R. § 1607.4 applies not just in the traditional context where an employer is required to maintain such records for the purpose of filing an EEO-1 report, but expanding its application to encompass a situation where an employer has allegedly failed to keep records regarding the impact of its criminal background checks on employment applicants. Many employers who conduct criminal background checks would be surprised by the EEOC’s position.
The EEOC’s new lawsuit represents another stark example of the EEOC’s willingness to aggressively litigate new theories against private employers. Employers should be aware of their record-keeping requirements under federal regulations and be sure that they are in a position to comply with any reasonable requests for such records if the EEOC comes knocking at the door.