I’m confused by seemingly contradictory principles regarding confidentiality surrounding how a company disciplines an employee.
Suppose Ken punches Charlie in the face at work, with no extenuating circumstances. Maybe Ken gets fired, or maybe he gets disciplined in some other way.
I hear the company can’t disclose, either to the other employees or to the outside world, the facts of the case that lead to his termination or other discipline. I hear this is because Ken has some right to have the information kept confidential, and in general companies aren’t allowed to tell other employees or the outside world why any employee was terminated anyhow.
But Charlie is allowed to tell anybody he wants to that Ken punched him in the face, right? How can anybody order a person to keep secret the fact that he was assaulted?
So does that create two classes of employees, namely, a class that has some official responsibility for the disciplining or termination of Ken, and is bound by confidentiality, and a class that is not officially involved, and is not bound?
Perhaps the resolution is that the company can’t say why Ken was terminated, and presumably couldn’t tell Charlie “we fired Ken because he punched you”, and therefore Charlie can’t spread the information that Ken was fired specifically because of punching him (because he’s never been informed of that exactly) – but Charlie is perfectly free and empowered to say, “Ken punched me and later that day he was fired”.
Right. It’s about avoiding lawsuits, slander, libel, defamation, but there’s no inherent right to privacy concerning your actions as an employee of a company.
If the OP happened at my small business, I’d be blabbing all over town, “Man, shit got real at work today. You know Ken White, lives over by the Arbys on 286? He went all crazy and punched little Charlie Simon in the face. Of course I fired his ass!”
Essentially, The Company has rights and obligations and liabilities. Officers of The Company, like HR, or Managers, are acting in the role of The Company in disciplining or firing Ken. So they must take on the rights, obligations, and liabilities.
Charlie, in his role as a fellow employee, is not acting in the role of The Company. I say that generally, because you can see how it can get fuzzy very quickly. What if Charlie was Ken’s manager? What if Charlie worked in HR? It is likely that when Charlie was hired, or when the investigation occurred, he was asked (with little choice in the matter) to sign a piece of paper saying he would abide by company policies, etc. These could be interpreted by some court somewhere to include preventing him from blabbing that Ken punched him.
Ex-employees, in the past, have sued companies which have disclosed negative information about them, and as a result, prevented them from obtaining new employment elsewhere.
These things go before a jury. And guess which side the jury will take every time?
As a result of these lawsuits, and large awards found by juries, companies have a policy of NEVER disclosing anything negative about any employees past or present. They just give out the facts (dates of employment/salary). (Name, rank, and serial number - they call it.)
The employees themselves are free to tell anyone else whatever they want. Not a concern of the company.
And then guess again. The myth that juries always come done against corporations is just that, a myth. However, companies don’t like lawsuits, win or loose. Truth is a defense to a defamation case, but they’d prefer to avoid the lawsuit altogether. Rather than figure it out on a case by case basis, (and perhaps make a mistake that ends up in court) it’s a whole lot easier to just give out the dates of employment, and leave it at that. As others have said, it’ not a confidentiality law, it’s simply the policy of many companies.
Well I took an industrial relations class in college - taught by a practicing lawyer. He told us juries usually sided with the ex-employee. Also that the average award was around $800,000.00. (This was in the late 80’s I was told this.)
I defend companies and cities against these types of lawsuits, and juries are smarter than you think they are.
Do more verdicts end up in favor of employees? Maybe, but remember that any case that was a slam-dunk in favor of management would have been resolved before trial by dispositive motion practice, and any close calls would have been resolved before trial by settlement.
Anyone can sue. It’s securing a verdict that’s difficult. That’s what settlement money is for.
I think I’d rather rely on the comments from the two practising lawyers in this thread, than the recollection of what some lawyer may have said 30 years ago.
Yep. Plus, “average award of $800,000” doesn’t seem right to me. But we don’t have a lot of detail about what cases are being averaged. It seems WAY high.
Did I mention the class I took was an extension post graduate class? Everyone in the class was a director of HR or a manager. They all agreed with what the instructor said! (He He He!)
Same on this side of the Pond. Most companies who understand these things, will not say why an employee left. Amazingly, the employee often gives it away at interview. “Why did you leave your last employer?” is a pretty standard question and the answers (or non-answers) can be pretty revealing.
However; if I was Ken’s manager, and after due process, fired him - punching someone, justified or not, is grounds for instant dismissal, but Ken would have a chance to put his case first - I couldn’t say so on a reference but I am pretty sure that I could tell anyone i wanted, since you cannot defame someone with the truth.
A prospective employer would soon find out that Ken had been fired, and since it’s really hard to fire someone here, that would worry him.
Re: lawsuits from disclosing negative information on an ex-employee:
The times companies lost, was it because it was not documented? Knowing the companies/managers I’ve worked for, this would not surprise me.
“Don’t hire Sam, he was late all of the time.” Well if I’m Sam and there is no documentation but you said that to an employer then yes I would win a lawsuit.
Seems right, if a little low. But remember that’s reflective of the sample- employees who return jury verdicts against their employer.
Average awards are high, because if there’s an award, the employer probably did something wrong- something very wrong.
Employer verdict- no award.
Settlement (regardless of underlying facts)- no award.
So if a jury awards money, it’s because the employer did something so egregious that even a big check, right now, with none of the pain of trial (you should hear my “just take the check” speech; it’s very good), isn’t enough to satisfy the employee.
Even when there are records they’ll be pulled into court. Then the company needs to prove the accuracy of those records. The witness to the events will have to be pulled in, and then grilled about the actual incidents. Nobody wants to get involved in that, and companies have nothing to gain disclosing that kind of information about ex-employees. Considering the attitude of the current corporate world regarding doing anything unnecessary in terms of profit or regulation it’s surprising they ever did disclose such information now. I suppose quite a few people would do that out of spite though, if not for the known pitfalls.
The worst part of this is that businesses are now hesitant to release positive information also. Dates of employment and salary confirmation is about all any place will release, if that.
But it’s important to remember that (in the USA at least) the employee has no right to confidentiality by law. Employers obviously have policies that they will themselves restrict what information they release because they don’t want to get sued, but it’s not like a HIPAA/PHI situation or attorney/client confidentiality situation, where actual laws exists to protect the information from being released.
Another point: even if the company wins the lawsuit in court, they are going to have to pay their lawyers. Yes, they have lawyers as employees, but those specialize in contract law and advise on what can be put in a contract (or what polices you need to avoid lawsuits). Once the court is involved, the company needs to hire someone expert on those matters. That’s an expense they want to avoid. And if they lose the lawsuit, it’s going to be even more expensive (which is why they need to hire an expert in litigation).