how long does negative personnel info stay in your records?

A reader writes:

Is it true that negative information is suppose to be off an employment record after 5 years and if so how do you go about getting it removed?

Nope, not true. Companies can keep employee files for as long as they want. (In fact, government regulations require that employers keep them for at least a minimum amount of time, but there’s no particular amount of time after which they must be destroyed.) I suppose some state out there might have some odd law on this, but I would doubt it. After all, companies are entitled to keep records of that sort for their own reference, so when the guy who was fired for punching his manager five years ago applies for a job again, the new hiring manager knows about it.

However, I assume your real question is about what you can do to prevent a former employer from sharing negative information about you with a prospective employer who calls for a reference. There’s no guarantee, but it’s usually worth a call to your old employer to ask if they’d be willing to reach an agreement with you on what they’ll say to future reference calls. It’s at least worth a shot — the worst that can happen is that they’ll say no. When you call, say something like this: “I’m concerned that the reference you’re providing for me is preventing me from getting work. Could we work something out so that this isn’t standing in my way?” Employers who either (a) take pity on you or (b) are terrified of lawsuits may be willing to work something out with you.

Just to be clear, it’s not illegal for an employer to give a negative reference as long as it’s factual and can be backed up by evidence. But some employers will cave anyway, since they don’t want to deal with the headache of a lawsuit, even if they’re likely to win. Those employers, of course, make it hard for other managers, since it makes it tougher to get honest references and thus to make good hiring decisions. So I hate that. But as a job-seeker, it could help you.

{ 2 comments… read them below }

  1. J.T. O'Donnell*

    Great points.

    I often suggest a trusted friend or family member call in and do a reference check on you to learn what your former employer currently says about you, or in some cases…doesn’t say.

    I’ve heard of plenty of situations where the employer says in a strong, direct, negative tone, “We do not give out references on employees.” While they are following their company policy, the attitude conveyed in the call is often misinterpreted as a poor reflection on the candidate.

    Once you know what is being said about you, you can strategize on whether it’s even worth contacting your former employer to discuss references on your behalf.

    Finally, some of the folks I’ve worked with have found it’s easier to counter-act a negative reference by letting a potential employer know up front how the reference process is being handled by your former employer. In this case, the best defense can be a good offense. And, once you let them know that the reference may be negative and/or non-existent, be sure to line up former co-workers as additional references who could shed light on your performance.

    1. caroline*

      I have just found out that somebody has being looking through my records and they left a envelope in my new records the thing that happened was 17 years ago so I was shocked to see them somebody had been reading them is there anything I can do

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