Who is covered by the new law?

Private employers with at least one or more employees are covered, as are public employers as defined in Minnesota Statutes section 13.02. The limitation of liability in the statute applies to personnel records a defined in Section 181.960 and to public personnel data and certain private personnel data as defined in the Data Practices Act. School Districts have been protected from liability to the extent they disclose violent acts or inappropriate sexual contact in accordance with the statute.

The law also specifically includes a particular employee or agent who discloses information on behalf of the employer. Inclusion of the person who discloses the information on behalf of the employer implies that this individual may be held personally responsible for inappropriate disclosures or violations of the law.

What disclosures may be made verbally, without an authorization?

Without an authorization from the employee, employers may verbally disclose dates of employment, compensation and wage history, job description and duties, and training and education provided by the employer.

What additional disclosures may be made in writing, without an authorization?

Without an authorization from the employee, employers may also disclose in writing "acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee's written response, if any, contained in the employee's personnel record." Any disclosure of this information must be done in writing with a copy of the disclosure sent at the same time by regular mail to the employee's last known address.

Information about "harassment, violent acts, and other illegal conduct" may only be disclosed if it is documented in the employee's personnel record and resulted in disciplinary action or resignation. The new law is not clear in whether an employer in this situation has an affirmative duty to disclose the truth about the situation. For larger organizations, it is possible that the person responding to requests for information would not know the specific events involved in the termination decision. They would typically only see information included in the personnel file. Based on the ambiguity of the new law, the most conservative approach would be to reveal only information that is documented in the personnel record. Organizations will need to determine what makes most sense for them.

Additional information may be disclosed with an authorization

If an authorization is obtained from the employee, an employer may also disclose:

Written employee evaluations conducted before the employee's separation from employment, along with the employee's written responses, if any, contained in the personnel record.

Written disciplinary warnings and actions in the five years before the date of the authorization, and the employee's written response, if any, contained in the personnel record.

Written reasons for separation from employment.

The employer that discloses this information must provide a written copy of the disclosure to the former employee by regular mail, along with revealing to whom the information was disclosed.

What protection does the new law offer?

The new law specifically provides that employees cannot sue their employers (current or former) for the disclosure of the information listed in the statute if the employer follows the provisions of the law and discloses the information to a prospective employer or employment agency.

What's not clear is the level of investigation an employer must conduct to verify that a particular request is from a legitimate prospective employer or employment agency. Obviously, the employer could confirm with the employee or former employee that the request is legitimate, but that creates an administrative burden that does not currently exist.

In order to bring a claim, the employee must show by clear and convincing evidence that:

a. the information was false and defamatory.

b. the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.

The requirement that the employee prove the employer knew or should have known the information was false and acted with malicious intent sets a higher threshold for an employee to meet than a typical defamation case. A standard defamation claim requires that a plaintiff show that the statements made were false, were communicated to someone other than the plaintiff, and harmed the plaintiff's reputation and lowered her in the estimation of the community.

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