Can an Employer Disclose Disciplinary Information?

Companies often look into job candidates' previous performance before making a hiring decision.
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State law varies on whether an employer can disclose disciplinary information about former employees. The question typically arises when an employee is looking for a new job. Some states provide immunity to employers, but others do not. Many employers limit the information they share in order to avoid defamation lawsuits.

Concerns About Disclosing Information

    Previous employers are often concerned that disclosing disciplinary information could lead to lawsuits against them. State law on the topic varies. In some states, employers can only provide information with the employees' consent. Other states protect employers from defamation suits by granting immunity if the information is given in good faith. Other states have few or no laws governing the matter.

Defamation Risk

    The main risk employers face when disclosing disciplinary information is a defamation lawsuit. For a statement to be defamatory it must damage the employee's reputation or hold her up to ridicule. To defend such a suit, the employer must be able to prove the truth of the statements he made. Some states provide partial immunity for references, as long as the statement is given in good faith.

How Employers Can Avoid Defamation Suits

    Certain policies can be used to help an employer avoid a defamation suit when it reveals disciplinary information after being asked for a reference. For example, employers could obtain signed consent from new employees that they can release information to future employers. Employers can also maintain an accurate and objective personnel file, put one person in charge of references, and give all references in writing only. Employers can also consult with an attorney to make sure their policies adhere to the laws of their state.

Examples of State Laws Regarding Disciplinary Information

    State law varies on how much information employers can reveal about former employees. For example, in Texas an employer can disclose in writing the reason for termination, the job performance, and attendance and attitudes of an employee. The employer is immune if he discloses information any employer would reasonably believe is true. Meanwhile, in Utah, employers are immune unless they disclose information with a specific intent to mislead or while knowing the information is false. Because the laws vary from state to state, concerned employers or employees should consult an attorney for specific details.

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