Recommend at Own Risk: Employers Face a New Quandary: What Information Should They Give out about Former Workers?

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Employers face a new quandary: What information should they give out about former workers?

Name, rank and serial number," says Sheryl Willert, a managing partner in the Seattle law firm of Williams, Kastner and Gibbs. "That's what I used to advise my clients."

Willert's clients are not prisoners of war. They are executives, administrators and managers groping with the troubling issue of confidentiality. Employers are leery of releasing too much information about former employees lest they find themselves embroiled in defamation suits.

The danger is not in losing the suit, says Eric Pelton, an attorney with the Detroit firm of Dickinson, Wright, Moon, Van Dusen Freeman, but in mounting an expensive defense in court. "These suits are expensive," Pelton tells Insight. In most instances, defamation charges are "throw-in claims" tacked onto plaintiffs' suits for discrimination or wrongful discharge. "It's just one more charge they choose to include," says Pelton.

Defamation suits brought against previous employers are difficult to win, especially because the transfer of information between former and potential employers is governed by "qualified privilege." The concept even allows a former employer to make a defamatory statement--if the statement is made in good faith. "Qualified privilege could be lost, however, if the information is made available to people outside of the hiring process," cautions Pelton, "or, perhaps, the information concerns activity not work-related. There could also be a problem if malice is involved; a reckless disregard for the truth."

Ironically, one of the most important cases in this area of law concerned an employer who released too little, not too much, information concerning a former worker. An employee of the Livingston Unified School District in California was fired for molesting schoolchildren. Although he had provided the name of his former employer -- another school -- to Livingston, that school had followed the "name-rank-serial number" guidelines -- omitting charges by students that the worker had molested them. …