Employee Privacy Rights in the Workplace - Term Paper Example

Employer rights following the termination of an employee are a highly debatable topic presently within the USA. Currently, from to acrossthe nation, employment and labor law issues differ in regards to references for an employees performance and protocols for disclosure of reasons for termination to future employers (Lovatt & Potter, 2004). There has been a growing trend amongst employers to take a 'silence is golden' approach with references, and to state only the basic facts of a previous employee. Fears of being sued for defamation are a primary reason for this reticence. However, future employees require comprehensive reference disclosure to employ people who will contribute to their organizations (Bahls, 1999). The employees, caught in the middle, depend on references to find gainful employment, but may jeopardize their eligibility if a reference portrays them in a negative light. The wider community (consumers, families, friends and acquaintances of employers and employees) may be equally affected when full disclosure does, and does not, occur. It is contended in this paper that it is vital that standardized national laws should be developed to protect past and future employers, the employees themselves, as well as the communities they work within. Firstly, the growing trend of litigation against former employers will be presented. Secondly, the laws across the states will be outlined in regards to former employer's disclosure of ex-employee information. Thirdly, reasons to standardize the laws will be provided. Finally, a conclusion shall synthesize the main points of the paper, and provide support for the adoption of a standardized national employment and labor policy in regards to termination disclosure. It is becoming more common for employees to ask their former employers for a written reason for their termination of employment, as well as a copy of their personnel record (Boisvert, 1999). It has been suggested that for previous employers, such a request is a cause for concern, as it is often a clear indication of discontent on behalf of the employee, and likely that the employee has consulted with a lawyer and is considering a lawsuit. As such, it is recommended to employers to assume they may be as risk of being sued, and to seek advice from their attorney immediately (Boisvert, 1999). When an employer terminates an employee they must be aware of the risk of being presented with a lawsuit, and have risk management policies in place to minimize such an event from occurring. The process of providing a reference for the employee will play a large part in determining if the employee can make a legal claim (Boisvert, 1999). For this reason, there has been an increasing tendency for employers not to provide comprehensive details of a former employees work practices. Many employers are heeding their lawyer's advice to tailor references to provide a neutral profile of the employee. In general, this involves confirming the employee's position, dates of employment and salary (Boisvert, 1999). There are numerous areas of potential liability for the former employer when providing a reference (Lovett & Potter, 2004). Most notably, is the risk of being sued for defamation or invasion of privacy. There is also the risk of liability for retaliation, such as when management takes revenge on an employee for a past non-compliance within the organization. Another liability risk is that of 'compelled self-publication' which occurs when an employee must repeat what they perceive to be false allegations as their reason from termination, so that the future employer does not hear it first from a previous employer (Lovett & Potter, 2004). In general, employers should implement policy for the response to requests of a written reference, or for requests of information from future employers (Boisvert, 1999). It is recommended that such a policy prohibit employees from disseminating information about their co-workers, and that the policy direct all inquiries for information to a specific person within the organization. It is further suggested that the former employer not disclose information about employees, terminated or current, without the employee first signs an authorization form for their employer to release such information to a third party (Boisvert, 1999). Development of policies that focus on risk management following termination can protect the employer from future liability (Boisvert, 1999). Also, providing documentation that points to fair and objective handling of the request can decrease the likelihood of legal action against the former employer (Lovatt & Potter, 2004). It is essential that employers be aware that the basic feature of defamation or slander is that the information disclosed is false. So that communications that provide a truthful presentation of the employee provide a much better defense against allegations of defamation. As such, it is necessary that the truthful information not be based on subjective opinion, but on objective evaluations and empirical evidence to show that attempts were made to improve the employee's job performance (Lovatt & Potter, 2004). In regards to the future employer, they have grounds for legal action against former employers if they feel that the information provided in a reference, personnel record or verbal communication, negligently misrepresents the employee in question (Smith, Permuth, & Gray, 1999). In cases of negligent misrepresentation the previous employer has altered the facts about an employees work performance or character. If a former employer has failed to disclose information about an employee that brings harm to others, the future employer has a basis for suing. Unfortunately for the future employer, the limited information provided by the trend of current neutral references, does not provide insight into the employee's ability to be reliable and productive, or shed light on their character as a person and experience with work requirements (Bahls, 1999). And for the employee who is competent, reliable and of sound character, lack of disclosure may imply that their work character is less than ideal, and hinder their ability to find work. Alternatively, for the employee who is the opposite of such traits, lack of disclosure may aid their finding of work, as the references does not indicate areas that may be of concern to the future employer (Bahls, 1999). The laws pertaining to employment and labor in the USA differ from state to state. For example in Minnesota, employees who have been terminated from their job have the right to request a written explanation that truthfully discloses the reason for their termination (Bahls, 1999). The employee must make the request in writing within five working days of their termination. The employer must respond to this request within five working days of receiving it. Across 37 states, laws are in place to protect the employer from liability allegedly resulting from an employee's reference. In general, the protection is in regard to information about the employee's performance at their job made by the future employer. In Georgia, employers who make statements about an ex-employee on request for a reference are treated as privileged if the employer is not considered to have acted maliciously. In Texas, the laws provide previous employers with the freedom to disclose a rich amount of information, such as job performance, attendance, attitude, level of effort, knowledge their behavior and skills. Also, laws in Virginia allow a former employer to disclose an ex-employees professional conduct, reasons for termination, their job performance, and results of written evaluations during employment. However, some states allow the former employee to request that their personnel information be protected, and not disclosed to future employers (Bahls, 1999). In contrast, some states do not have laws that protect the employer from litigation regarding employee references (e.g., Connecticut, District of Columbia, Kentucky, Mississippi, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Vermont, Washington and West Virginia). For example, in Massachusetts it is argued by those concerned, that an immunity status from the employer does not extend on, or provide better protection as that which is already available through the court system. In general, state case law means that an employer is immune from liability for information contained in a reference if it is disclosed in good faith (Bahls, 1999). Additionally, in Alabama there is not a specific statute to provide immunity protection to employers, although vindictive or punitive damages can not be rewarded to an employee or future employer unless it is proved that the information disclosed was false, or recklessly provided without regard for whether the information is false or true (Bahls, 1999). The direct implication of not having standardized laws across the country is perhaps best exemplified by the devastating results that have occurred within some communities and organizations. For example, in the case of Randi W v Muroc joint Unified School District (1997), the California Supreme Court found that the previous employer of a school administrator had been negligent in their not disclosing the teacher's sexual misconduct and impropriety with a student. In fact, the former employer had provided the teacher with references detailing his exemplary behavior with students, the future employer citing these references as the main reason for their hiring of the teacher. The teacher in question went on to sexually assault a student. The Supreme Court found the former employer liable for fraud and negligent misrepresentation (Smith, Bermuth, & Gray, 1999). In Massachusetts, the company Maine Yankee power had not disclosed to the future employer, Edgewater, that their ex-employee McDermott had been terminated for making threats toward the company. It is the policy of Maine Yankee to provide only a neutral reference. One day McDermott arrived at work with an AK-47 and gunned down several HR staff members before shooting himself (Bahls, 1999). Another example is the employee who was terminated from his position with Allstate Insurance Co. because he too had made threats at work, and was found to have been carrying a gun to his job. However, the former employee disclosed that the reason for the ex-employees termination was 'corporate restructuring,' and provided him with a generous severance pay. The employee was later hard by the Fireman's Fund, was later terminated from this job also, and returned to gun down three senior managers of the fund. Allstate was found liable for providing a misleading reference. While these cases tend to involve a specific set of circumstances, they are becoming more common, and have a broad and immediate impact of the wider community (Bahls, 1999). In conclusion, it is evident that the disclosure of information regarding a previous employee's termination has a myriad of potential effects for the employee, the former employer, the future employer, and the community at large. The issue is complex, and it is clear that a standardization of statue that protects the immunity of employers may be the best strategy to promote truthful and comprehensive disclosure of employee details. Additionally, the ability for former employers to disclose information to future employers can position the employee in a much better position to acquire gainful employment, if they already practice a strong work ethic. And fuller disclosure of employee details may decrease incidences of retaliation or continuing anti-social behaviors that impact on the wider community, as well as the organizations themselves. It is recommended that more be done to evaluate specific immunity statutes across the nation to ascertain how best to protect the rights of the employee, the employers, and the well being of the community. References Bahls, J. E. (1999). Available upon request Focus on Recruitment: legal aspects of employment references. Human Resources Magazine (January). Retrieved May 28th, 2006 from: http://www.findarticles.com/p/articles/mi_m3495/is_1_44/ai_53889125/pg_2 Boisvert, R. C. Jr. (1999). How to reduce your risks after the termination. Employment & Labor (November). Retrieved May 28th, 2006 from: http://www.fredlaw.com/articles/employment/empl_9911_rcb.html Lovatt, C., & Potter, S. (2004). Employment references: Let the writer beware. Retrieved May 28th, 2006 from the Manchester Metropolitan University website: http://www.cheshire.mmu.ac.uk/bms/home/research/pdf-doc/doc-12.pdf Smith, A. E., Permuth, S., & Gray, D. L. (1999). The principal and reference letters. NASSP Bulletin (November). Retrieved May 28th, 2006 from: http://www.findarticles.com/p/articles/mi_qa3696/is_199911/ai_n8853266 Read More