strategybox-ga,
I've looked into your question in some detail, and it turns out to be
a pretty interesting area of law.
As I mentioned in my earlier comment (above), there is not a lot of
specific state or federal law on this topic, especially regarding
interstate requests for information.
However, there is certainly some law, as well as some general
rules-of-thumb that have emerged from the combined experiences of
human resources departments across the country.
As a reminder, the disclaimer at the bottom of this page points out
that Google Answers is no substitute for professional legal advice. so
please take things with the appropriate grains of salt.
That said, though, the basic rules of thumb are:
--Stick to the facts: verifying employment, and providing information
about length of employment and salary history are generally
acceptable.
--Be careful with evaluations: Some firms do provide evaluation
material, and merely stick to simple verification, or to the basic
facts of employment. However, it is also generally acceptable to
provide performance evaluations to prospective employers, BUT there
are some caveats here.
It's important to stick to the record, rather than providing ad-hoc
responses. It's fine to indicate, for instance, "This employee was
terminated due to company cost-cutting", or "this employee was
terminated for stealing on the job". However, a comment like "I
wouldn't touch this one with a ten foot pole" isn't sticking to the
factual record, and could lead to liability problems.
--By the way, withholding certain information can also pose problems.
If an employee was fired for on-the-job violence, for instance, and
the previous employer fails to mention this fact to a potential
employer, then the previous firm could be facing potential liabilities
if the new company hires the employee, and then experiences a violent
incident.
As I mentioned, some states have put into law some of the do's and
dont's of employment verification. An example is Kansas:
http://www.lesterama.org/KS/Chapter_44/statutes/44-119a.html
Chapter 44.--LABOR AND INDUSTRIES
44-119a. Employer immunity from liability and suit for disclosure of
employment information
The law explicitly states that it is perfectly OK to provide any or
all of the following information to prospective employers:
(1) Date of employment;
(2) pay level;
(3) job description and duties; and
(4) wage history.
In addition, ex-employers can also provide written materials -- in
response to a written request -- on:
(1) Written employee evaluations which were conducted prior to
the employee's separation from the employer...
(2) whether the employee was voluntarily or involuntarily
released from service and the reasons for the separation.
There's nothing in the statute that says an ex-employer has to verify
that a prospective employer really is who they say they are (rather
than some kook pretending to be an employer). But note that the law
requires that the release of more sensitive information on job
performance occur in writing, in response to a written request, which
would presumably come in on company letterhead. While this can still
be faked, of course, it does add an extra layer of protection to the
process.
A good article on the topic at hand is here:
http://www.lpconline.com/negligent_employment_verifying1.html
EMPLOYMENT VERIFICATION: REDUCING THE EXPOSURE
and it basically emphasizes the points that (a) it's okay to give out
factual information on ex-employees and (b) giving out too little
information can be just as problematic as giving out too much.
Note that the article continues for three web screens ... click on the
bottom of each page to continue to the next page.
I made a thorough search of state law for Massachusetts at:
http://www.mass.gov/legis/laws/mgl/
THE GENERAL LAWS OF MASSACHUSETTS
but I did not find anything along the lines of the Kansas statute.
However, it would certainly seem to be the case that the Kansas law
was codifying practices that are regarded as good practice in
business; similar practices are probably in effect at many companies
in Massachusetts, California, and across the country.
In sum, then, business practices regarding employee verification vary
from company to company depending on the company policies in place,
and (to some degree) local law.
Companies are generally on pretty firm ground, though, if they provide
employment verification information to prospective employers that
sticks to the facts, especially regarding employment tenure, salary
history, job description, and documented reasons for separation.
I trust this information fully answers your question.
However, please don't rate this answer until you have everything you
need. If you would like any additional information, just post a
Request for Clarification to let me know how I can assist you further,
and I'm at your service.
All the best,
pafalafa-ga
search strategy -- Various Google searches on combinations of terms, including:
"former employee OR employees"
"ex-employee OR ex-employees"
"human resources"
verification
liability
negligence OR negligent |
