[GranolaGeek]

Point of curiosity here, so please don't skip someone in true need in order to answer me. I've been searching the net for days now but can't find specific information on the limitations of what a former employer can divulge to a new one without leaving himself open to privacy or defamation issues. (Alabama) I realize it's probably a very gray area, which simply piques my curiosity further. Now that I've been reading here for hours too, and have seen some remarkable responses, I wonder what you all think of this scenario:

I currently use a contractor for technical services beyond the scope of my expertise. Recently, I sent him on a sub-contracting job which involved a former employer of his. After the work was satisfactorily completed, I received an unsolicited email from the former employer stating that this gentleman was terminated for unexcused absence resulting from drug use.

In reality, I was already aware of this information. The contractor was forthright about the terms of his dismissal upon interview with me, took complete responsibility, and has followed up with treatment and counseling. Irrelevant as it may be, he has also represented my firm in exemplary fashion on each assignment he has been given.

There is obviously no libel here as the former employer is telling the truth. There is no HIPPA violation because there are no medical professionals involved. He is not currently classed as "disabled" though he would probably qualify were he to pursue those channels. That classification, however, would not protect him from dispersal of his work history though, I don't think.

On the other hand, had I NOT been aware, I could certainly see where this man's reputation with me would have been seriously damaged, resulting in my reluctance to hire him, resulting in loss of income for him. Further, read in context, there was virulent malice in the divulging of this history. (I was shocked on several levels when I read it.) Even had I asked for a reference, is this level of detail appropriate? Unsolicited, are we into slander here? Harassment? Just bad taste? Moral character?

I don't think there will ever be a case per se, but if this person is contacting other companies with this kind of thing, I worry about the second chance this guy is working so hard to achieve. He's succeeding right now. I'd hate to see him cut off at the knees and so would like to gently advise this former employer that dangerous ground may be approaching. I just can't figure out how to do it...

What say you fine minds? Am I being over protective or was this email out of line?

[AK lawyer]

... There is obviously no libel
...
On the other hand, had I NOT been aware, I could certainly see where this man's reputation with me would have been seriously damaged, resulting in my reluctance to hire him, resulting in loss of income for him. Further, read in context, there was virulent malice in the divulging of this history. ...
...

As you said, it's not libel, so there is no liability.

Furthermore, there is no injury. He hasn't lost his job or reptation with you. I don't see any claim.

[excon]

I'd hate to see him cut off at the knees and so would like to gently advise this former employer that dangerous ground may be approaching. I just can't figure out how to do it...

Hello G:

As noted, since the email contained nothing but the truth, it's not illegal or even "dangerous" to send out. Oh, it's RUDE, and MEAN, but you can't rid the world of those people. There's nothing you COULD or SHOULD do.

excon

[GranolaGeek]

Thank you for the input. If she gives this info out to other companies in our field, he WILL lose income, but it is, of course, difficult to prove. I have always been advised never to give more than employment dates, salary history and a "yes" or "no" on rehire status because of privacy law. Now that I'm curious, however, I can't seem to find anything with the Department of Labor, either Federal or State, that gives a guideline. Any idea where I should be looking? Thanks again! You all are quick, concise and very, very helpful folks!

[excon]

Hello G:

There are no guidelines... On the one end, there's free speech. On the other is libel. A business person is left to decide where on that spectrum he should tread. MOST employers won't say anything other than dates of employment.. Others will say more. Some will say TOO much and get sued.

excon

[AK lawyer]

... I have always been advised never to give more than employment dates, salary history and a "yes" or "no" on rehire status because of privacy law. ...

I am curious who gave you this advice and what "privacy law" they were referring to. It's my guess that it wasn't an attorney or, if it was, he/she cited "privacy law" without actually being aware of any such specific law.

[GranolaGeek]

That's exactly where my curiosity lies, Excon; what is TOO much, and how to tell... what a circle! LOL! Thanks for the response!

[GranolaGeek]

No, actually, it wasn't an attorney, just a general consensus among small business owners in my area. Most notably, this is the policy my husband uses. I figured it came from a specific guideline because he is under FAA (now under DHS) and is constantly having to check and recheck legalities. That's what get for assuming! I would love to look over this so called "Privacy Law" that keeps getting bandied about... but so far, I can't pin it down. Fascinating to a research hound like me! Thanks for the interest!

[excon]

That's exactly where my curiosity lies, Excon; what is TOO much, and how to tell...

Hello again, G:

It's NOT difficult at all... An employer must tell the truth. He can tell AS MUCH, or as little of the truth as he wants. Can he venture an OPINION?? He CAN, but I wouldn't. I'd stick to the verifiable TRUTH.

excon

[ScottGem]

Point of curiosity here, so please don't skip someone in true need in order to answer me.

First, I wanted to comment on this. This site is about answering questions. We only skip questions if we don't know the answers. So the above is actually pretty rude and insulting.

Of course you didn't mean it that way and maybe this other employer thought he was protecting you. Frankly, I don't understand you sending him to his former employer or his not begging off going given the history. I think EVERYONE involved showed very poor judgment. And maybe that's what set the former employer off. I would be upset if an employee I terminated for drug use was sent to work for me as a contractor. And I would never use the contractor who sent him to me again.

I'm kind of playing devil's advocate here. I'm trying to show you that there are always different points of view.

But to specifically answer your question, what my colleagues have said is accurate. Anyone can say what they want as long as they speak the truth. Many employers have chosen to say nothing rather than risk saying something that could be misconstrued and result in a law suit. But there is no legal basis for doing so, other than a fear of our litigious society.

[GranolaGeek]

Excon, I've read you in many, many posts now, and just wanted to say I like the way you think. I have enjoyed your input on this quite a lot. I can't imagine being in a legal field right now and trying to actually use this "Privacy Law," which appears to be more urban legend that statute. I am curious and amused at this, and of course, a self-admitted research junkie, just keep digging until I "know." I see this "Privacy Law" bandied about all through helpful boards of this nature. I have yet to see actual statute quoted, hence my fishing expedition. I think you make a great fishing buddy, Excon. Please accept my many thanks!

ScottGem, I deeply apologize if my words were offensive. Some of the posts here struck me as being time sensitive. I did not see any, except for mine, that were posted for the satisfaction of curiosity alone instead of true need for answers and action. It seemed prudent to me to warn you at the outset that my post was less important than most. I have volunteered on many boards in many capacities and know that time is both precious and short. I simply did not wish to waste yours on something of so little real world consequence. Thank you for understanding that my intent was not to insult.

Thank you, also, for playing devil's advocate. It always helps to look at things from another perspective. On the face of it, I share your opinion that outrage was not only an acceptable reaction, but should have been the expected one. I did expect some waves. I did not expect the level of nastiness that ensued.

In the interest of brevity, I left out complicated details that somewhat mitigate my poor judgment in this case. While it doesn't excuse it entirely, and I have learned much from this experience, I am 100% certain that the other employer acted from malice alone. Of course you can only go on what your OP provides. I'm just not known for my talent at brevity in the first place, and so did not wish to complicate matters more than absolutely necessary.

Here goes:

Company A is a financial institution converting branches it bought out over a tri-state region. Company B is a large franchise which has contracted these conversions from Company A. Company B does not provide its own resources, but hires sub-contractors to perform the actual technical services. Company C was hired for that purpose. An “Agent� of Company C, contracted My company to take the overflow they were unable to handle in house. In turn, I run an IT contracting firm, making me Company D in the chain and my contractor a sub of a sub of a sub of a sub. Regardless, the Agent for Company C specifically requested Contractor M for the job because of, not in spite of, their prior work history. In short, my company wouldn't have even been on the radar had Contactor M not been on the roster.

Contractor M had already explained the circumstances of departure from Company C, bore it no ill will whatsoever and accepted full responsibility for his actions at the time, leaving him in good standing with the “Agent� and with myself. While I understand its irrelevance, Contractor M has made an incredible effort, despite his odds, at cleaning up his act and getting the help he needed. His remorse was true and honest and the steps he took and followed up with were admirable. I would never have taken a chance on him in any other circumstances. Further, because of the specific request, I “assumed� water under the bridge type relations.

My mistake was in assuming. Just because the Agent felt Contractor M was the right man for the job, did not mean the owner of Company C felt the same way, which turned out to be the case, in spades. In fact, the owner of Company C, according to emails, specifically forbade the Agent from hiring Contractor M under any circumstances and therefore refused to pay my company, initially, for the sub contracted services.

My response was that the work had been completed in a timely manner to the satisfaction of Company A, Company B and the Agent for Company C, that the paperwork had also been submitted correctly and in a timely manner, and that I was not responsible for internal company relationships. Therefore, I expected to be paid in a timely manner as well. I was not in any way unprofessional in my communications with the owner, but did suggest that solving the issue in-house might be helpful toward the professional image we must all present in these circumstances. Her response was profane, vulgar, and outright hostile, including the divulgence of the circumstances surrounding Contractor M's termination.

I should certainly have investigated the situation further. I should have suggested an alternate contractor for the position. Lesson learned. However, I refuse to accept responsibility for the actions of the Agent in question and maintain that the issue is internal to Company C. A direct order was given the Agent, and was disregarded. This is not my problem. The owner had no issue with the quality, quantity or timeliness of the work provided. Contractor M performed as expected and we both deserved to be paid. Eventually we were. Company C will not recommend me in future, and I will not recommend Company C either. End of actionable discussion.

But the manner in which the termination details were provided did piqué my curiosity as I have mentioned. It sparked my investigation into these “Privacy Lawsâ€� and I ended up here. Since the commentary I read prior to posting was rather interesting, professionally sound, and seemed to cut to the heart of matters, I was interested in opinion on the privacy aspect of what happened.

What I was told was true. It was, however, delivered with malice and ill intent. If nothing else, this presents a learning opportunity for me, and for anyone who comes after me and chooses to read this novella of history.

It has no bearing on real life circumstances at this point. The case is “closed,� since I have been paid. My concern is in how to help Contractor M when it seems that Company C will, with malice, spread this information throughout our industry, ruining a competent performance track record, and limiting his opportunities in future. The ADA specifically addresses this: http://www.mrinc.com/ADA.htm,

[quote] 8.5 Recovering Drug Addicts
Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction. [\quote]
So I'm curious now.

He did not qualify under ADA then. He would now, and I have advised him to pursue this classification.

Again, case closed, except for my lingering curiosity on Privacy Law and how it affects employee and employer relations. (Still mostly irrelevant since we are speaking of contracted work here.) It honestly IS a simple matter of my “research hound� instincts. I want to KNOW what the law says, and have been unable to find out.

Hence my request for guidance from the experienced and helpful folk here. Bottom line? The statement was true, but delivered with obvious and indisputable malice, which is the second part of what I have read. Is it true? (Yes.) Was it malicious? (Yes.) Where is the LAW on this? I still don't know.

Again, my thanks!

GG

[ScottGem]

OK, Thanks for explaining why you let M Go to work for C. I can understand your actions in the circumstances. But the fact remains that regardless of the malice and reasoning behind C's owner's actions. He was within his legal rights and there is no legal recourse.

[JudyKayTee]

I see no legal resource and will add that malice is very, very difficult to prove.

Just for argument's sake if the Email was malicious - why? Why is the ex-employer so eager to discredit the employee? Was theft or something else involved? I would guess that addicts are terminated on a fairly regular basis. I don't know that the ex-employer then follows them around. Is something else going on?

There is privacy law as such. It's all about discrimination and common sense.

I don't understand why your employee would seek an ADA "classification." He either is covered under ADA or he's not. It's not like ID cards are issued. It's on a case by case basis.

[GranolaGeek]

Hello JudyKayTee!

Welcome to the elusive "actual" privacy law discussion!

I don't think it would be all that difficult to prove malice in this case. The initial email from the former employer was a heated refusal to pay because the Owner of Company C did not approve the use of Contractor M on the job. My response, as above, was that the work was completed, accepted and signed off, and that all paperwork had been submitted. Job finished, payment owed. I was polite and professional, but did suggest that the problem seemed to be between the Agent and the Owner.

I am not in the habit of checking the credentials of my callers when they have formal work orders, time sheets, contract agreements etc. and I expect to be paid in the same professional manner in which I offer services. The Agent signed, and I signed a binding contract. There was no argument at all on that fact.

I could reprint the response here, but it went on quite a bit. Essentially, the owner was furious that the Agent hired Contractor M and my firm, without permission, and in fact, against direct order. Between the expletives and highly derogatory remarks, (SOB's like Contractor M don't deserve second chances, only jail time, etc. etc.) the information regarding Contractor M's termination was given, along with the final "advice" to keep my nose out of Company C business unless I had the "full story." (Full story being the reason for termination.) There truly is no more to this story that that.

As for the termination: Contractor M called in sick for a day as a direct employee of Company C, but it was not a true illness. He had a hangover from the prior night's drug use. That fact would keep him from qualifying under ADA at that time as it does not cover current users. Contractor M, however, had been clean and sober for some time prior to this incident and felt horrible about what happened. His guilt would not allow him to leave it alone. Part of recovery is total honesty and the need to make amends, which I have seen in plenty during my work with him. Mistake or not, he then wrote an email to the Agent, which was his direct supervisor at the time. He explained what really happened, apologized, and promised it would never happen again. The email was intercepted by the Owner of Company C, and Contractor M was terminated on the spot. Totally understandable and I have no qualm with it whatsoever. Neither the Company C Owner, nor Contractor M, however, has ever indicated that the problem was more than that. Their stories match in entirety.

After his dismissal, Contractor M self checked into rehab and followed up with regular attendance to Narcotics Anonymous which continues to this day. He has enrolled in a continuing education program and has regularly submitted to drug testing. NOW he qualifies under ADA.

Sadly, today, I received two identical forwarded emails from "friendly" competitors. The Owner at Company C, is indeed, spreading the word about Contractor M's prior use and termination to other potential employers in our industry.

His status is in no danger with me. He's been an exemplary contractor for long enough for me to feel comfortable with his stability. However, I cannot keep him busy full time, as he is highly specialized.

So, I'm sick at heart knowing Owner C is attempting to sabotage his prospects elsewhere. He's trying hard and doing well. He doesn't deserve to be hounded just because the Agent wanted him on this job and went around his boss (using me) to do it.

Bottom line is I wish this so called Privacy Law were a bit more concrete. I may not be able to help Contractor M, but I sure do want to know where the line is, if for nothing else, my own curiosity and protection should I ever be faced with a similar decision.

Thanks for your input!

All my Best,
GG

[Fr_Chuck]

I almost always call and warn a new business if they hire someone that has had serious issues,
Drugs while working, theft and porn addition ( will not stop using company computers to look at porn)

It is a duty that many business people have to help protect the other business, and we expect that they would do the same.

Many business people have groups and associations, monthly meetings, diners and the such.

I would be very lax in my duty if another business was not at least warned to look out for certain behavior.

And if what I am telling them is true, there is really nothing that can be done, I am free to tell the truth about an employee termination unless there was a settlement agreement not to speak of it.

I am shocked that these businesses did not do proper background checks to know about this up front.

And of course informally, yes of course some people get "black listed" for some acts against an employer. Management within some industry is very close knit.

[GranolaGeek]

Fr. Chuck--with all due respect, as I have read many posts by you as well, we're a bit off topic at this point.

I am aware, and in agreement, that there was no cause for action in this case. It is a more "philosophical" discussion about where the lines of privacy, given no concrete guidelines, should fall. This is why I felt my question shouldn't be given more than curious attention. Then I wanted to pin down, with references, this elusive Privacy Law that is cited so much in so many places. That too, has pretty much been "debunked" for me. I'm not happy about it, but am not sure what else of value can be discussed. ;-(

To answer your valid points, however, I will say that the circumstances you speak to were not the circumstances of this case.

There was no WORKPLACE drug use. Yes, it is splitting hairs, but Contractor M never showed up at work, according to either party, under the influence. He was at least THAT responsible. In fact, the problem was that he DID NOT show up at work that day, after a night of use. Theft and/or porn never entered the picture, even though I know you were only using them as examples.

The truth is, the entire thing would have been of zero consequence had Contractor M not confessed a few days later.

I am a member of the local Chamber and Rotary, among other things. I am also, by no means, new in this business. I have served this particular community for more than 10 years, and have been self employed in this industry for nearly 25 years. So, I totally understand loyalty and the duty to protect other interests. This is a well known fact, locally, which is why I got these "friendly competitor" emails in the first place.

Owner C was in no way trying to protect me or anyone else with this disclosure. THAT is what is new to me. Allowing myself to be manipulated into being a "cover" for the Agent of C to hire Contractor M, is also new. Many lessons have been learned.

By backing off, however, and refusing to engage Owner C in what amounts to a mud slinging contest, it appears I have made an enemy. Not surprising, really, but the vehemence speaks for its self. I am convinced more than ever that there is nothing but nastiness involved. In fact, I now believe, given enough rope, (as in my refusal to respond further), Owner C will use that rope unwisely.

Here is the contents of the "warning" that went out this afternoon. I know of two copies thus far. As I mentioned, I have "friendly" competitors out here. We'll see what else turns up.

Hey [XX ME XX]

Hope things are O.K. Got this crap about [M] & thought you needed head's up.. What a xxxxhound. I've known you & [M's] been okay. [WTX] is this about?

Regards,
[Friend X]
[company x]

-----------------------------------------------------------------------------------------------------------------

From: xxxx [mailto: [email protected]]
Sent: Friday, April 22, 2011 2:13 PM
To: [email protected] [undisclosed recipients]
Subject: WARNING!! ADDICT ON THE JOB

[XX Company D XX] is not to be trusted because they use [Contractor M]!! I need to give you FYI on your rosters. [Agent for C] was told in advance not to hire [Contractor M] for [Company B] job on [Company A] converts because [Contractor M] is a drug additc. And [Agent C] hired him anyway. FYI the reason I told [Agent C] NOT to hire [Contractor M] is because of his past performance with our company not showing up for work due to a drug binge, which [Contractor M], himself sent am email stating he had done. So if your doing work with [XX Company D XX] beware their using in appropriate help. [XX Me XX] knows about this and do to covering up, will send [Contractor M] and you will have a scumbag addit on your job.

XXXXX -President
Company C

[GranolaGeek]

Oops. One more for you, Fr. Chuck,

Please don't be shocked regarding background checking. First of all, as several responses have missed, Contractor M is not called Contractor because he's an Employee. The only company for which Contractor M was a direct employee was C. C failed to do a background check on him. No doubt about it.

I did not. At the end of a successful interview for a CONTRACT position, I requested a background check. Contractor M had another hour of story to tell after that. The background check matched the story. To my knowledge, none of my "friendly" competitors have been aware of Contractor M, up until now, or when he has been sent on overflow jobs between us. He is new to the geographical area, if not the technical one, and as I have said, has never failed to perform for my company.

Yes, I was blacklisted once in a juvenile era of my life. I know what it means, and know also that it is often a valid means of clansman-ship in tough times. In that case, the only real problem arises when one of the clan is stupid enough to put it into writing.

[ScottGem]

[XX Company D XX] is not to be trusted because they use [Contractor M]!!!

This presents a different story. It is one thing to report the issues M had to someone who employs them. But it is a totally different thing to bad mouth a company because they employ them. The above statement IS actionable In my opinion. Especially if it can be shown that D lost business because of it.

[JudyKayTee]

If this is purely philosophical it belongs on a discussion board. I think it's going in that direction.