Determining Who Is an Applicant

April 13, 2006

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If you're not receiving a lot of resumes, calls, and letters, you don't need to worry too much about setting up a formal policy for deciding who is an official job applicant and who isn't. In the smallest businesses, anyone who expresses an interest, orally or in writing, can be considered an applicant.

If you have 15 or more employees. Federal antidiscrimination laws require that you keep records of all applicants for one year to ensure that you aren't excluding people in protected groups (i.e., groups by race, color, ethnicity, national origin, religion, gender, age (over 40), disability, or veteran status). Therefore, it becomes important to decide exactly what a person must do in order to be considered "an applicant."

Technically defined, applicants are those persons who have indicated an interest in being considered for hiring, promotion, or other employment opportunities. Applicants need not necessarily include those who submit unsolicited resumes if you have a policy not to accept them. You are given a great deal of discretion by the law in establishing legitimate application procedures. However, once you've established a policy or a procedure, you must apply it fairly and consistently to all applicants.

It's in your best interest to have a pretty simple policy. Since it's up to you to design the application intake system, weigh the following considerations:

Once you determine that someone is an applicant, you cannot discriminate against that applicant if he or she is in a protected group.
The EEOC requires you to keep recruiting records, including applications, for one year.
Vague or confusing procedures are more likely to be challenged.
In order for someone to be considered an applicant, you must know that the person was seeking that job. If your business has an informal application procedure, it may be easier for the applicant to show that you were, or should have been, aware of his or her interest.
Since applications remain "active" for a reasonable period of time (unless the employer otherwise states), it can be argued that an applicant has expressed an interest in any similar vacancy that occurs within that reasonable period of time.
Your response indicating an awareness of the applicant's continued interest may also require you to consider that applicant for a vacancy even if the application is no longer formally "active." You may want to state on your application form that the applications will be retained on file for a specific period, such as six months or a year.
A person can still be considered an applicant even where no application was made if that person can show that he or she would have applied but was discouraged from doing so by the employer.