When checking applicants' references, some employers like to do an "end run" around the HR department. They'll call the applicant's former supervisor directly to find out the dirt on the person.
That's why it's important that your supervisors know how to respond to such requests. Your organization may require that all calls go through the HR department. Or you may provide only "name, rank and serial number" data on ex-employees. One point to hammer home to supervisors: Never disclose medical information about employees or former employees.
Disclosing medical information opens you up to a lawsuit under the Americans with Disabilities Act (ADA) confidentiality provision. Key point: People don't need to be disabled to file such a lawsuit. Nor do they need to be employees. Former employees can file such lawsuits, too.
Recent case: When she couldn't land several jobs, Nora Heston suspected her previous employer was giving out negative references. She hired an investigator, who posed as a prospective employer and called her former company for a reference. Heston's ex-supervisor gave a generally positive reference, but also made a negative comment about her bad back, for which she had gone on disability leave.
Heston sued, claiming the supervisor's reference to her back injury was an unauthorized disclosure of confidential medical information in violation of the ADA.
The company countered by saying the employee couldn't win because she wasn't disabled and she wasn't an employee at the time of the lawsuit. But the court sided with Heston on both accounts.
Reason: It doesn't matter that she wasn't technically "disabled" under the law. The ADA's confidentiality provision makes it illegal to disclose medical data about all employees, even if they're 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." (Heston v. Underwriters Laboratories Inc., No. 1:02CV00417, M.D.N.C., 2004)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Absentee Problem? Here's how to clarify your leave policy
- Class-Action status granted for disgruntled immigrant workers
- Supreme Court follows Ledbetter logic in AT&T pregnancy discrimination case
- Supreme Court expands retaliation prohibitions