All Employers Should Adopt A Written Policy to Address Questions About Former

Businesses are often contacted by other businesses that are seeking information about the job performance of a former employee. The first step that should be taken by a prudent business is to establish a company-wide policy on how such inquiries are to be handled. Such a policy should include the following:

(1)           All inquiries about former employees should be directed to only one person, such as the human resource director;

(2)           The designated person should limit the information provided to the dates of employment and the job title; and

(3)           No opinions as to the former employee’s job performance should be expressed.

There is potential liability to an employer if false information is provided about a former employee based upon a defamation claim. A policy which restricts the amount of information provided can limit the exposure on such claims. Additionally, in California, such a claim may not be available if the statement is based on an employer’s evaluation of an employee’s performance, so long as the evaluation is considered only an opinion and is not false. (See, Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958.)

Any business that is sued by a former employee will be aided if it can establish the existence of a written policy that addresses the type of information that is provided about former employees. Also, there are aggressive ways of responding to complaints of the defamation nature, such as a motion to strike under Code of Civil Procedure section 425.16, that can be supported by the existence of a written policy. Therefore, it is important for all businesses to adopt and implement such a written policy.