Is it legal to disclose to a potential applicant when you speak with their previous employers?

UPDATED: Sep 30, 2022

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Is it legal to disclose to a potential applicant when you speak with their previous employers?

I had scheduled an interview for a retail position with a person who had previously worked for the company I work for. I discovered after scheduling it that she left the previous store while under investigation by the company. I made it known that I had spoken with management at the other location when calling to cancel the interview. Have I opened the door for a lawsuit against the company or myself?

Asked on June 27, 2016 under Employment Labor Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If you are disclosing something to an applicant that they should already know... that they were under investigation by a former employer... then it's not illegal.  They may be upsetting, but upsetting news is not illegal to deliver.  It is a violation of HIPPA to disclose to third parties privvy medical information... but that's not what appears to have happened here.  You disclosed a performance issue to the person it was regarding.  You had a right to call any references or former employers to ask about her performance. 
The only person that has any potential liability is the person who told you there were performance issues, but only if the assertions were not true.  If the other person told you something that was not true, then that person could be subject to a defamation suit.
As a best practice, it's best to simply tell applicants that you found a better fit when deciding not to hire someone.  This keeps you out of any potential hot water or messy claims of defamation.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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