An employee can waive the privacy of their own personnel records by authorizing the release of personnel information to a third party, such as their union.2 When a former employee sues you for wrongful discharge, failure to promote, a disciplinary action or other employment decision, the court generally holds that the employee has placed their employment history at issue, thereby waiving the right to privacy for their personnel records for purposes of the lawsuit.

You have a number of potential liabilities for improperly releasing personnel information. For example, you cannot make misrepresentations about a former employee to prevent or attempt to prevent them from obtaining employment.3 You can make a truthful statement about the reason for a former employee’s discharge or voluntary termination. However, if your statement is not in response to a request or is accompanied by marks or symbols that convey information contrary to the statement, that action is considered misrepresentation.4 Even when your response to a prospective employee’s appropriate request is truthful and accurate, liability can arise if that response is adverse and in reprisal for the employee’s exercise of the right to file a claim under employment laws.5

Defamation is an unlawful invasion of an individual’s interest in maintaining a favorable reputation. It encompasses communications that have a tendency to injure a person in their occupation. Unlawful interference with prospective economic advantage can occur when a prospective employer decides not to hire an employee based on false statements or inappropriate facts disclosed by a former employer.6

Before releasing personnel information in response to reference checks, see Responding to Reference Check.

For information on an employee’s right to access their own personnel information, see Access to Personnel File.

1. Board of Trustees, Stanford University v. Superior Courts, 119 Cal. App. 3d 516 (1981)