There is no generally affirmative duty under New York law to disclose or not disclose information about disciplinary action against employees and ex-employees. Exceptions exist in the education, medical, childcare, police fields among others. Most private employers are free to choose what to disclose or not about disciplinary action. Regarding current employees, the best practice from a human resources perspective has been and continues to be that disciplinary information be kept to a relatively small number of other employees/managers that have a need to know about it.
Considering former employees, the advice to and policy of most New York employers has been to give only the ex-employee’s dates of employment and last position held in order to avoid the risk of a defamation claim should something said about the disciplinary action turn out to be incorrect. This is even though defamation, defined as communicating false information about a person that injures the person, is a difficult claim to succeed on in New York. More specifically, defamation requires that a false statement be published (verbally or in writing) to a third party without any privilege or authorization, and that the publication causes damages. Moreover, New York has a qualified privilege allowing employers with an interest in common with the recipient (such as a prospective employer perhaps) to share honest information about ex-employees, including disciplinary action, even though the information may turn out later to be inaccurate. This qualified privilege requires that the employer disclosing the information do so in good faith and without actual malice.
In the current “Me Too” climate regarding sexual harassment, some commentators and some employers have expressed the belief that disciplinary action against ex-employees for sexual harassment should be shared with prospective employers. California reacted by passing a law specifically exempting reports of prior sexual harassment from possible defamation liability. New York has not done so to date. So, the answer to the question of “Can an employer disclose disciplinary action against an employee?” is not black and white. Accordingly, employers who wish to provide information about disciplinary action taken against ex-employees should still consult with experienced employment counsel before doing so.
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