What can an employer reveal about their employee to a possible new employer?

Before I begin, I would like to thank anyone who reads/answers my question for your time.I am unable to pay for a consultation, my husband and I live week to week-but I understand completely if you don't answer.
"my question"
My friend will soon be interviewing for a job with NY State , caring for disabled people. She has been employed by an agency for approx. 7 years working with disabled people . We disagree on what her past employer can tell the person whom interviews her about her history with the agency.
Can they tell them that she is currently suspended for her absenteeism and tardiness? Can they tell them that she has slacked at her job? She thinks it is NY State law that they can't give a bad reference. I think it may be, but it would depend on how it is worded. I thank you, any help would be greatly appreciated.
Sincerely, K.

1 answer  |  asked Jun 8, 2005 1:01 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Employer References

I assume that you work for a private sector employer. Frankly, the answer is complicated enough for private sector employers. It would be even more complicated for public sector employers.

Employees have no right of privacy concerning there employment records. SO, employers have no obligation to keep those records private.

There is no statute in New York State that in any way limits the information that an current or past employer may give to a potential employer. So, there is no specific statute or regulation limiting what an employer might say.

However, many employers have become deathly afraid of defamation suit by employees arising out of negative references. Many employers are so afraid of this type of lawsuit that they will only confirm dates of employment. They will provide neither negative nor position references.

Frankly, I have always wondered why employers are so afraid of these lawsuits. If you knew defamation law, you would realize that defamation cases are hard to win in the first place.

In my view, in one employer is giving a reference to another employer, there is a argument for saying that the communication is qualified privileged. If so, that would make a lawsuit on a negative reference that much more difficult to win because the employee would have to show malice to overcome the privilege, something which is not easy to do.

Further, truth is always a complete defense to defamation. So, if an employee is fired for, say, stealing, and the employer in fact was evidence supporting that conclusion (and no, the evidence does not have to prove guilt beyond a reasonable doubt), an employer will no be held liable for telling a new employer that it fired the employee for stealing.

posted by David M. Lira  |  Jun 8, 2005 4:48 PM [EST]

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