New Pennsylvania Law Protects Employer Disclosure of Work History

Pennsylvania employers that disclose information about current or former employees to a prospective employer will enjoy a presumption that the disclosure was in good faith. This means, according to the law, that the employer will be "immune from civil liability for such disclosure or its consequences" in any lawsuit brought by the employee or former employee. Employees will be able to rebut the presumption of good faith only by presenting "clear and convincing evidence" that the employer disclosed information that:

• the employer knew or should have known was false
• the employer knew was materially misleading
• was false and disclosed with reckless disregard for the truth; or
• was probibited from disclosure by contract or other law.

Comment: Pennsylvania was one of only 14 states that did not provide statutory protection to employers for disclosures of job performance information to prospective employers. Pennsylvania employers previously had a comon law conditional privilege to make such disclosures. The new statute does not affect immunities available under common law, so the existing immunities should be available in addition to the immunity offered by the new statute.