Employers receive, retain and maintain a significant amount of information about each employee. As such, when a third-party is seeking information about someone, an employer or former employer is often a source from which information might be sought. You and your colleagues must be prepared to respond to requests for information to ensure that you are appropriately protecting employee information and not exposing the organization to legal liability.
Requests from third-parties other than prospective employers:
It is not uncommon for employers to receive requests for information about current or former employees from governmental agencies, attorneys, and other individuals or companies. There are certain requests to which you might be legally required to respond, including:
Requests for information from government agencies. Often times government agencies need information from employers for purposes of child support determinations, to confirm eligibility in a government program, or for some other purpose. These requests generally state that you are legally required to respond.
Requests for information from lawyers. You are only legally required to respond to requests from lawyers if they are in the form of a legally sufficient subpoena or the lawyer includes an authorization from your current or former employee to obtain personnel records or any other documents to which the employee is legally entitled to obtain.
Aside from those legally-required situations, you are not required to provide employee information to a third-party.
Should you ever provide information even though you are not legally required to do so?
Maybe, but only with written authorization from the current or former employee. For example, if you receive an employment verification request from a mortgage lender, you do not have a legal obligation to provide any information, but a failure to do so will likely have an adverse impact on your current or former employee because that information is required to obtain a loan. The best course of action is to obtain authorization from your current or former employee and provide the requested information.
Employers have a professional obligation to protect employees’ confidential information. Failure to do so could result in a poor reputation and legal liability. Any time that you do in fact provide employee information to a third-party, either because you are legally required to do so or because you have obtained your current or former employee’s consent to do so, make sure that it is truthful and accurate.
Requests from prospective employers
Prospective employers often reach out to a candidate’s current and former employers to obtain practical information about the candidate’s performance, attendance, and abilities.
There are no federal laws that prohibit the type or nature of information an employer must or cannot disclose to a prospective employer. Many states, however, have laws identifying specific information that employers can disclose without being liable to an employee or former employee for claims such as defamation. In Minnesota, for example, a private employer is immune from liability when it provides specifically identified information, including the current or former employee’s dates of employment, compensation history, job description and duties, and any education or training provided during the employment. Providing additional information without written authorization isn’t inherently illegal, but may expose an organization to legal liability in the event that the current or former employee files a lawsuit. The best practice is to only provide information that you are legally protected to provide, and to obtain written authorization from the current or former employee before providing any additional information.
If you are unsure whether or not you must or can provide information requested by a third-party, you may want to consult with legal counsel prior to taking action, or if you are a Hotline client, contact us.