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.
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.
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.
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.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace. In addition to providing practical solutions to employment law matters, Hannah has extensive private practice experience. Her focus included early intervention advice and solutions to employers, as well as representing them in the defense of administrative claims. She now works on a team dedicated to providing solutions for employment law and compliance matters for employers of all sizes. Hannah graduated from William Mitchell College of Law, after receiving a Bachelor of Arts degree from Winona State University.
During the White House’s Summit on Working Families on June 24, 2014, President Obama indicated he was signing a presidential memorandum requiring every federal agency to address flexible work schedules and give employees the right to request such schedules. Absent what could be a dramatic increase in workplace flexibility for federal employees, it is undeniable that the demand for flexibility and work-life balance is on the rise.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
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