Effective August 15, 2005, an individual who sues his current or former employer for disclosing information relating to his employment, including the reason for termination, will have a much tougher time prevailing in Pennsylvania courts. The reason for this change is a new law that grants employers limited immunity from civil lawsuits brought by employees who challenge the employers' right to disclose information about current and former employees to prospective employers.  Under the new law, private businesses, public agencies and non-profits, as well as those acting on their behalf, are presumed to lawfully disclose information about an employee's work performance as long as disclosure is made in good faith.

Be advised that the new law does not specifically preclude an employee from bringing a lawsuit.  It does, however, set a very high standard by requiring the employee to demonstrate by clear and convincing evidence that his/her employer lacked good faith in revealing the information.

Pennsylvania now joins 38 other states that have adopted these types of disclosure laws.  Their purpose is to encourage employers to provide prospective employers more information about former and current employees with less civil liability exposure.  By providing the presumption of good faith, lawmakers hope employers will feel more comfortable providing references that include more information than the typical neutral response of employee hire dates and job titles.

Businesses such as those that provide health care and child care will welcome this legislation as it will give them another tool to help ferret out those individuals who are terminated for the types of serious work place misconduct that should preclude them from ever working in such industries again.  Indeed, the genesis of this legislation can be found in an incident involving Charles Cullen, a registered nurse in New Jersey, who admitted to murdering over 30 patients at five different hospitals.  Cullen had been fired by a number of hospitals for serious misconduct, but none of those hospitals provided information to Cullen's subsequent employers for fear of being sued by Cullen.  This new law now gives employers some needed flexibility to reveal important information about a former employee.
The new law does not provide protection to employers who: (1) knowingly provide false or materially misleading information, (2) disclose false information that is rendered with reckless disregard as to its truth or falsity, or (3) communicate information prohibited by contract or other law. 

The bottom line is that while employers must still be wary of litigious employees who can still bring suits, including ones for defamation, the new law affords employers greater protection when disclosing information about current and former employees' performance and the reasons for their separation from employment.

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