Web-surfing job seekers bombard companies with electronic resumes. The Equal Employment Opportunity Commission and other agencies have issued proposed guidance on when an employer must keep records of those applications to satisfy federal laws against discrimination.

In short, EEOC says you don’t have to keep a record of every resume that clutters your e-mail box.

The key question in legal terms is, “Who is an applicant?” EEOC uses a three-pronged test to identify a bona fide applicant:

“The employer has acted to fill a particular position;

The individual has followed the employer’s standard procedures for submitting applications; and

The individual has indicated an interest in the particular position.”

The Federal Register notice explains: “The core of being an ‘applicant’’ is asking to be hired to do a particular job for a specific employer…With respect to Internet recruiting, this means that people who post resumes in third party resume banks or on personal websites are not [legally] ‘applicants’’ for all employers who search those sites…

“If an employer contacts this individual about a particular position after finding her resume or personal profile online, and the individual indicates an interest in that position, then the individual becomes a [legal] ‘applicant,’ if she also meets the second prong of the test set forth above. Similarly, if an employer contacts an individual about a particular position in response to an unsolicited resume submitted online, and the individual indicates an interest in that position, then the individual becomes a [legal] ‘applicant’ if she also meets the second prong of the test.”

If a company posts specific job openings on its own website, anyone who submits an application or fills out a form is considered an applicant.

The proposed rule is FR Doc 04-4090 in the March 4 Federal Register.