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Unsolicited Resumes: How They Create Employer Liability and What To Do About It

By: Laurie Meyers, Esq.

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Most employers develop their own policies regarding how to handle the acceptance or return of unsolicited resumes. It is important to know that there are risks associated with maintaining unsolicited resumes and the best policy an employer can adopt is to return all resumes not sent in reply to a job advertisement. This is true because for years, Civil Rights Groups and government agencies have used persons described as testers to seek out employers that may be engaging in Civil Rights violations.

Testers are typically sent to employers in pairs. For example, one tester might be a white male applicant applying for a job that he or she does not intend to accept. The other tester might be a minority applicant with equivalent qualifications, education, experience, references, and other factors relevant to the position. The goal is to "test" how the employer treats the minority. The agency or group using the testers will compare the employer's treatment of both parties from the hiring through the selection process.

Even though testers are not really seeking employment, there is a legal precedent granting testers the right to sue if the Equal Employment Opportunity Commission (EEOC) finds discrimination. If you are an employer, there are some steps you can take to protect your company.

First, and most importantly, it is best not to accept unsolicited resumes. If you have a website, you should state in bold letters that the company does not accept unsolicited resumes or applications. When you only accept applications or resumes for announced job openings, then it is easier to identify the candidates that match the qualifications and experience necessary to perform the job. A well-written and thorough job description can serve as an effective filter, enabling only the best-suited candidates to pass through. In addition, a detailed job posting makes the factors used in the selection process much clearer, and it becomes much easier to explain, and defend if necessary, why one candidate was chosen over another.

If you need to accept unsolicited resumes and applications to expand your access to qualified applicants, be sure to develop a strict policy for handling them. In the policy, describe how these documents will be reviewed, how they will be handled if no position is currently open, and how the applicant will be notified of his or her status in the screening process. You may also want to inform the person if his or her application will be kept on file for future consideration.

If there are no present openings, or if the applicant is being denied the position, you may wish to list the qualifications the person does not meet in an effort to protect against claims of random discrimination.

Having a consistent policy in place minimizes the chances an employer will act inconsistently when receiving resumes or applications. Applying this policy without exception is an employer's greatest defense to claims of discrimination.

If your company decides to accept unsolicited applications and resumes, you must review each resume submitted. To review, it is recommended that you be consistent in reviewing the applicant's qualifications and have a written policy for how such unsolicited documents are handled. Once you have accepted the resume or application, it becomes a legal employment record and you must comply with applicable State and Federal laws, such as those regarding record retention and privacy.

In conclusion, whether you choose to return unsolicited resumes and applications or you choose to maintain such records, make sure you have written policies and procedures in place for handling such documents, and that you follow those procedures without fail. Also, remember that any documents you maintain must comply with State and Federal laws.

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