Can a manager show performance reviews to a prospective employer calling for a reference?

Legally can I reveal a former employee’s attendance record to a prospective employer, ie: absent 25/180 days, 15 no call/ no show. Second, are performance reviews allowed to be shared with potential employers?

Rita Risser replies:

First of all, if your company prohibits managers from giving references, follow company policy. Assuming they don’t, legally anything you say that prevents a person from getting a job can be grounds for them to sue you personally. So you want to make sure that anything you say you could prove is true in a court of law, and does not violate their right to privacy. The attendance record seems pretty safe to share with prospective employers. It is objective, kept in the ordinary course of business. Performance reviews are questionable, in my opinion. I think an employee could say that they have an expectation the reviews themselves are private. But it is certainly a time-honored practice for managers to tell prospective employers about the strengths and weaknesses of former employees. Again, it is possible to get sued even if what you say is true, so the questions to ask yourself is how big is the risk the employee would sue, and is it worth the risk.

Posted 09-13-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.