What are my rights to keep false statements out of my personnel file?
My manager at work has attempted to issue me a written warning that will become part of my permanent personnel file. The document states that she monitored a telephone conversation between myself and a coworker and alleges that I threatened another coworker.
There is no recording of the conversation as it is not true. I don't know what, if any, rights I may have to prevent false and potentially damaging statements/documents from being placed in my personnel file. I am a resident of New York state.
Answers (1)
You have little recourse to keep false statements
The problem with responding to queries like yours is that they often do not contain enough information. For example, my precise answer will depend on whether you are a civil service employee. Even if you are not a civil service employee, my advise to you might be different if you are a union employee.
For the purpose of provide some type of answer to your question, I will assume that you are not a civil service employee and you are a union member. I am assuming that you are working for a private employer and you do not have any kind of employment contract. I am further assuming that your employer does not have any kind of personnel procedure. Even if your employer did have such a procedure, they are generally worthless to employees. In fact, although my view may be a bit extreme, I believe that employers can affirmatively mislead employees in things like employee handbooks and generally get away with it. But there might be (that is, may the law will afford protections to employees, but may be not) exceptions in certain areas, such as with employee benefits.
After all of these assumptions and exceptions, I believe I would still be talking about most employees in New York State. That is, most employees in New York work for private employers, are not members of unions, have no employment contracts, and either have no type of employee handbook or have employee handbooks which will not afford them any real protection.
If you are this type of employee, the short answer to your question is you are out of luck. With respect to your employer, you have no protection against inaccurate or incorrect information in your personnel file. With respect to your supervisor, you have little more protection. In theory, you might go after your supervisor under a defamation theory. But defamation is very difficult to prove. Further, you would be dealing with a privilege in this case. That is, with certain exceptions which are difficult to prove, even if your supervisor communicates incorrect information to your employer, the supervisor's comments will generally be protected from suit because the supervisor has a responsibility to the employer to communicate information about employees. To overcome this privilege, you would have to show malice, which is very difficult to prove because you in efect have to get inside your supervisor's head.
I'm sorry I can't be more helpful.
Sincerely,
David M. Lira
posted by David M. Lira | Feb 19, 2001 2:48 PM [EST]
The problem with responding to queries like yours is that they often do not contain enough information. For example, my precise answer will depend on whether you are a civil service employee. Even if you are not a civil service employee, my advise to you might be different if you are a union employee.
For the purpose of provide some type of answer to your question, I will assume that you are not a civil service employee and you are a union member. I am assuming that you are working for a private employer and you do not have any kind of employment contract. I am further assuming that your employer does not have any kind of personnel procedure. Even if your employer did have such a procedure, they are generally worthless to employees. In fact, although my view may be a bit extreme, I believe that employers can affirmatively mislead employees in things like employee handbooks and generally get away with it. But there might be (that is, may the law will afford protections to employees, but may be not) exceptions in certain areas, such as with employee benefits.
After all of these assumptions and exceptions, I believe I would still be talking about most employees in New York State. That is, most employees in New York work for private employers, are not members of unions, have no employment contracts, and either have no type of employee handbook or have employee handbooks which will not afford them any real protection.
If you are this type of employee, the short answer to your question is you are out of luck. With respect to your employer, you have no protection against inaccurate or incorrect information in your personnel file. With respect to your supervisor, you have little more protection. In theory, you might go after your supervisor under a defamation theory. But defamation is very difficult to prove. Further, you would be dealing with a privilege in this case. That is, with certain exceptions which are difficult to prove, even if your supervisor communicates incorrect information to your employer, the supervisor's comments will generally be protected from suit because the supervisor has a responsibility to the employer to communicate information about employees. To overcome this privilege, you would have to show malice, which is very difficult to prove because you in efect have to get inside your supervisor's head.
I'm sorry I can't be more helpful.
Sincerely,
David M. Lira
posted by David M. Lira | Feb 19, 2001 2:48 PM [EST]
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