How Long Can an Ex-Employer Retain Personal Information?

How Long Can an Ex-Employer Retain Personal Information?

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When you leave a job, your employer is required to delete certain personal information from their files. This is governed by a variety of federal and state laws. However, an ex-employer is required by law to retain your personal information.

Ex-employers usually retain personal information for at least a year. However, the law states that companies should not hold personal data longer than necessary but does not define a maximum term. Companies are subjected to a minimum term for specific personal data as set out in federal and state law

In this article, we will discuss the laws around retaining personal information. We will also look at why employers need to keep your details on file and what you can do if you want them to delete your information.

When Can an Ex-Employer Destroy Personal Information?

Employers need to hold onto your personal information for at least one year, as set out by the U.S. Equal Employment Opportunity Commission (EEOC). Payroll information is required to be kept even longer, for a minimum of three years.

An ex-employer can destroy your personal information after 1-3 years. However, they may keep it for longer, particularly if there are any disputes or court cases where this information is necessary.

These recordkeeping requirements are set out by Federal anti-discrimination laws and may be extended by state laws. A charge does not need to be brought against an employer, as they must keep these records regardless.

Not all employee information needs to be retained unless it is set out in the law, which we’ll break down in the following sections. There is no minimum or maximum term defined in legislation. 

However, companies are expected not to keep information longer than necessary.

The Type Of Information Employers Keep On File

The type of information that employers are required to keep on file generally falls into two categories: personal and employment-related.

Personal data includes:

  • Your name
  • Date of birth
  • Contact details
  • Social security number
  • Nationality
  • Health details
  • Criminal record
  • Union membership
  • Political memberships
  • Religious beliefs

Employment-related data is any information that is relevant to your current or past position with the company, which can include:

  • Performance reviews
  • Training records
  • Disciplinary actions that were taken against you
  • Copies of your contracts
  • Workplace accidents
  • Employment history with the company
  • Payroll information

You have the right to request a copy of the personal file that your employer holds about you. Some employers may refuse this request, which might be compliant with the law in some states.

There are no federal laws around this, but many states have introduced legislation that means employees have the right to review or copy their personal files. 

A company may charge a fee to cover the copying costs, which you will have to pay. Of course, you might be able to dispute these costs.

The Kind of Information a Company Must Retain

There are different requirements for particular pieces of employment and personal information that a company must keep on record. In this section, we will look at the types of information they hold and how long they need to keep it.

Pre-Employment Records

If you apply for a job or make an inquiry about positions, the company is required to keep a record of this information for a minimum of two years. This information is held mainly for anti-discrimination reasons. 

The data they may hold is:

  • Job applications
  • Resumes
  • Job inquiries
  • Employment referrals
  • Announcements for promotion opportunities

Personal Files

Your company keeps a variety of personal data about its employees, and it must hold on to this for a minimum of two years. Included in this are:

  • Promotions or demotions
  • Disciplinary action
  • Transfer, layoffs, and discharge information
  • Training records
  • Evaluations

Payroll Records

Payroll information is one of the most important things a company needs to maintain a record of because ex-employees may need to raise a dispute over their pay. A company is expected to retain this information for a minimum of 3 years. 

This is what data they need to keep:

  • Employee details including name, D.O.B, and address
  • Wage records
  • Hours worked
  • Hourly or piece rate
  • Overtime and straight time earnings per week
  • Wage deductions
  • Wage additions
  • The dates your paid and the period covered

Why Do Ex-Employers Need To Retain Your Details?

There are a few reasons why an ex-employer might need to keep your details on file after you leave the company.

Ex-employers need to retain your details to ensure compliance with state and federal recordkeeping laws. Employers are required to keep certain records for set periods of time, and they may need your personal information to do so.

Another reason is that an employer may need your data in the event of a legal dispute. They may subpoena your records or use them as evidence in court. In some cases, they may even be required to disclose them to the other party in the dispute.

Finally, an employer may keep your details on file in case you decide to come back to the company. They may not have your contact information anymore, so they need to be able to find you if you want to return.

How Ex-Employers Use Your Data

Former employers can use your information in a number of ways following the end of your contract. They may need to stay in touch with you shortly after to arrange payouts of bonuses or severance.

If you decide to move on and use your former employer as a reference, they will need to access your employment records to give an accurate account of the time you spent with them. 

Without your personal information, they may not be able to provide you with the glowing review you deserve.

If there is a legal dispute between an employer and an employee, the employer will often use the employee’s personal information as evidence. This information can include performance reviews, disciplinary actions, or contact details. 

A different employer may also subpoena the employee’s records from your former employers to build their case.

Disputes can take years to be resolved, and a company will not be allowed to destroy your information until the case is resolved. In these instances, the length of time they retain your information may be longer than usual because it is necessary for them to hold on to this information.

Once the resolution has been confirmed, the employer will then be free to delete your personal information, as long as there are no longer federal and state requirements to adhere to.

Can a Former Employer Sell My Information?

A big problem people have regarding companies holding their personal information is whether they will sell them on or not. Data is big business, and many companies will sell people’s data to make easy money. This is pretty common with consumer data, but what are the rules around employee data?

A former employer can sell your information, as they have had the leniency to sell your data to the highest bidder in the past. This has become increasingly harder to do. There is no federal law to prevent this, but significant media attention on this has made this harder to get away with.

California is the only state with a comprehensive data protection act (CCPA) which means employers must tell you what information they collect and why they are collecting it. This act provides a necessary benchmark that lawmakers in other states and businesses are watching closely.

The act allows you to opt out of your employer selling your data, but this is only a possibility in California at the moment. Companies that operate here and in other states may have adopted a single policy that adheres to CCPA.

Can You Ask a Former Employer To Delete Your Information?

You can ask a former employer to delete your information, but they do not have to oblige. The main reason for this may come down to the federal and state requirements, which means they legally can’t do it.

If you believe that they have no lawful reason to retain your information, you can challenge this. 

The first thing you should do is request to see what information they are holding on you and why. Check your state laws on what the company must provide, as in some states, they won’t need to give you access to this information.

If you are not satisfied with the answer, you can contact a lawyer to help get your information deleted. This is a costly and time-consuming process, but it may be necessary if you feel that your privacy has been violated.

Conclusion

Employers have a legal obligation to retain employees’ personal information for specific reasons, which generally relate to the employer needing to access this information in the event of a legal dispute.

If you are concerned about your privacy, it is important to be vigilant and ask the right questions of your former employers. Knowledge is power, and in this case, it can help keep your personal data safe.

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