“Hi, this is Mike from XYZ Company. I’d like to ask you a few questions about a former employee whom you used to manage.”
At some point in managers’ careers, they’ll receive such a phone call from an ex-employee’s prospective employer. Be careful: One simple mistake in your response could trigger an expensive lawsuit.
First, understand the organization’s policy on how to respond to reference calls about former employees. If you don’t know the policy, contact HR.
One important point to remember: Never disclose medical information about former employees—and that goes for current employees, too.
Disclosing a person’s medical information to a third party can open an employer to a lawsuit under the confidentiality provisions of the Americans with Disabilities Act (ADA). And people don’t need to technically be “disabled” to file a lawsuit under that law.
This real-life court case illustrates this important point.
The case: Nora kept getting rejected when applying for jobs. She suspected her previous supervisor was giving out negative references. She hired an investigator, who posed as a prospective employer and called Nora’s former boss for a reference. Her ex-supervisor gave a generally positive reference, but he also made a negative comment about her bad back, for which she had gone on disability leave.
Nora filed an ADA lawsuit, claiming the manager’s back injury comment was an unauthorized disclosure of confidential medical information in violation of the ADA.
The decision: The court sided with Nora. It didn’t matter, the court said, that Nora wasn’t technically “disabled” under the ADA’s definition of disability. That’s because the ADA’s confidentiality provision makes it illegal to disclose medical data about any employee, even if he or she is not disabled.
Plus, the law makes clear that former employees can sue after they’ve left a company. The court said the “need to protect this sensitive information does not end on the termination of employment.”
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