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Jul 18, 2017

Think twice before telling the truth about former employees

Q&APrivacy & Confidentiality 

Q: We just got a call from a business that wants to check on a former employee. They faxed a release she signed waiving liability for information we share. Are we safe telling them the truth about what a bad employee she was?

A: Not so fast! A signed release seems like a golden ticket to share your true feelings and frustrations about a former employee, but the release may not actually protect you. That’s what an Indiana medical clinic recently found out the hard way. In this situation, the clinic settled an EEOC claim with a former doctor that included a confidentiality agreement. When the clinic received an evaluation request from a temp agency with a seemingly broad release protecting “all others involved in this background investigation and any subsequent investigations,” the clinic thought it had a green light to criticize its former employee. When the former doctor wasn’t hired, she sued for defamation and violation of the state’s blacklisting statute. Focusing on sentence construction and comma placement, the court noted that the release only protected the temp agency and all others working with it—not the former employer. (Manhas v. Franciscan Hammond Clinic, LLC, Ind App, Feb. 2017). Although it’s tempting to share facts about a terrible employee, especially if you want to protect unwitting new employers, you need to protect your business first. To avoid a potential defamation suit, confine your comments to confirmation of jobs held and dates of employment. If you receive a release authorizing you to provide more information—either from a former employee or a prospective employer—call your employment attorney before you share any dirt to see if you’re in the clear.

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