Imagine that you were talking to someone and suddenly you get asked a question. Turns out you know a lot about this subject. So you happily answer on and on and on. The person you're talking to seems interested and keeps listening, even taking notes.
You end the conversation and you're happy you were able to help. But then, you suddenly wonder... Should I have said that? Didn’t I disclose too much information? What if I get into trouble for saying all of that? Did I tell too much? It's like TMI or "too much information".
Now our reader Julianne P. Hi, Julianne. She was wondering the same thing when she submitted her question via our Topic Suggestion board. So what did she say?
Attorney, what information can a previous employer disclose about a separated employee during employment verification? Is a letter of authorization from the concerned employee a requirement before an employment verification be entertained?
I'm sure Juli isn't the only one wondering about this. If you can relate to Juli, then stick around as we get this sorted out.
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Are you guilty of TMI?
Welcome to Legal Guide Philippines where we simplify the law to help you make better choices. I'm Atty. Ramon Ramirez and I are with my partner, Atty. Erwin Zagala. So today we're talking about disclosures in relation to the Certificate of Employment. So here's the situation. So you have a former employee, and you issued them a certificate of employment.
Now, this employee then applied with another company. Another one. As part of that company's hiring process, they verify the Certificate of Employment with you. Okay. Alright. Now, when another employer calls you up to ask about the former employee, what are you allowed to say about them? What does the law allow you to disclose? Will you get in trouble if you share truthfully?
It's just the truth. How much is too much information based on the data privacy act? Take note, that if you disclose too much or something that's supposed to be confidential, you can really get into trouble. So you have to be careful about this. To help you out, I'm giving you a framework so that you can navigate this complicated situation with ease. What kind of framework is this Atty. Erwin? Well, let's call it the Triple D levels of disclosure. Are you ready, Atty? Ramon? Yes, absolutely. Triple D.
Level 1: Default
Okay, so level one of the Triple D framework is "Default" Default. Yes. Okay, default, because this is what you can say, validate or state without any risk at all. This involves information that's already on the Certificate of Employment that you issued. So I've already written. So by default, you can validate or confirm it without any feelings of doubt whether you should be doing it. Okay, that makes sense. What's the logic? Why default Atty. Erwin? I don't have to do anything to make sure that I'm doing the right thing? Yes, because you already stated it. Remember you already issued this information in the certificate of employment.
So there is nothing legally wrong with validating what you are already certified to. Okay, so all I need to do is just not answer the call anymore. and just say, just look at the certificate of employment that I've already issued. That's all you need to know. That's one way of doing it. However, even if it's the default, there are still some things that you need to check. Because maybe your version of your certificate of employment differs from the version that was submitted to that employer.
So it's like they made it up from Recto. Possibly, here this is rank and file, then there, Supervisor. Yes Or maybe their salary here, let's say, is P25,000 Yes, so he/she can negotiate the position better. Does this happen? Probably no? I hope not. Not on our watch, right? Not on our watch. "Katay yan" (we'll deal with it) But even if it's a "default", basically legally, you're just validating what you already said. Still, be careful because you need to validate if the information is the same as what you wrote in the certificate.
Level 2: Discretionary
It's a good tip Atty. Erwin. So with that, let's move on to level two. What is level two? This is... "Discretionary" Now, why discretionary? It's discretionary because you need to think of it. And you'll decide whether to allow it or disallow it. Correct? So try to guess Atty. Ramon who exercises discretion at this level? If they should show the information that is inside this level. Employer or employee? Since that is data privacy, I would think employee. You got it. So discretion of the employee, if they give their consent to talk about these kinds of things. Why? Why do we need the permission of the employee? Because we're talking about information that's no longer on the certificate. It goes beyond, so this information can be personal or sensitive.
And to be safe about it, we would recommend that you secure a waiver or a letter of authorization from the employee, allowing you to disclose these things to the hiring entity. That way, the employee can't come back saying, "Hey, you weren't supposed to say that... That's private!" Especially if it's kind of negative or against the employee. Why did you put that I have a crush on someone? Attorney, so what are these "private" what can the employees say, "Oh, that's private."
What are these things? Let's tackle some examples. We'll make it broad so you can understand the "flavor" or "nature" of the things that we talk about at level two. Let's first go through the Data Privacy Act and here we have many examples. This is a hot topic. Yes because, section three talks about sensitive personal information The examples that are talked about here are an individual's race, ethnic origin, marital status, age, color, religious, philosophical, or political affiliations.
That's quite sensitive. And maybe, individual's health, education, genetic or sexual life, or to any proceeding or any offense pertaining to the employee, maybe it has reached the court at some point right? It can be a sensitive topic. So those are some examples. We can also add health records, license government registrations, SSS, PhilHealth, PAGIBIG. So those are sensitive information according to the data privacy act. Or it could be, aside from those enumerations, there are things that are sensitive like, how was the employee separated from your company? Did the employee resign? Was the employee fired? Why? What was the case?
So, Attorney, I can't disclose that? For example, the employee stole from me, and I had to terminate him with cause. So for that -- the manner of separation -- it's somewhat a gray area. Because there is nothing specifically prohibiting you from disclosing that. However, to be on the safe side... And you know that we want you guys to be safe... so I would recommend that you get authorization or waiver. That way, when a sensitive topic like this comes up, you are safe. So again, gray area, but be on the safe side. Other sensitive areas include salary if in case it wasn't indicated on the certificate of employment. Also, how was the relationship with workmates? How was the employee, is he/she good at getting along with the others. Is the employee a team player? Maybe the employee got into many arguments. Performance. How were the evaluations, accomplishments, nature of work, and possibly emergency contact details of the person? Who will the employer call when something happens or other work references? Now any information that can be categorized under any of these items. Again, I would consider them as personal information and just to be safe. Get authorization. So that it is clear.
Level 3: Double Discretionary
Okay, that's a great tip Atty. Erwin Now this leads me to the third level. What could this be? I'm sure they will not guess this. Level three of the framework is "Double Discretionary" Double Discretionary? Because you are now needing two permissions before we talk about the information which is included here. So the first discretion is who? The employee. Now we are adding another one. And the person that you need discretion from is... Drum roll, please. Yourself. You. The one that gives the information. The employer, the first employer? Yes. Why is that? Because this information deals with information that you own. The business that you own. Why is that? Okay, this information is company property or asset.
And you are the best judge of whether it's allowable or it's reasonable for you to disclose these to third parties. What are some examples? For it to be clear. Please. There's an employee. And it's the same employee we've been talking about. We are talking about, "Sir, who are the clients that were served by this employee while he/she was working with you?" Okay so. Wait, wait, wait, that's my client list. So that's my call if I want to disclose that, or, "Sir, what are the projects this employee work on while working with you?" Wait a minute. That's mine. Or, "Sir, what are the intellectual property outputs that the employee made?" For example, you made the employee write a book or brochure. Or made programs. Program or proposal.
Or, sir, how much was the income generated by the employee for the company? Or medical records or nature of services or anything related to financials. So I'm hoping that you're seeing the distinction, what is the nature of what is the flavor of the information that is within level three. Again, it's discretionary on your part, whether you want to part with this information or you want to share it. Why? It's your property.
You're the one who owns it. So that's the three levels. Hopefully, by giving you the whole playing field, you're able to make sense of things better. Can I ask a question? What do I do, let's say you said it's discretionary on the part of the employer. Let's say I'm the employer. Level three. Level three. So what do I do if the questions being asked with me, I feel that's already too confidential. Okay, two words: "It's confidential" For example, ask me, "Atty. what are the clients that this employee served?" "I'm sorry... It's confidential." Next question, please.
Hey, sir what are the incomes that this employee generated? "I'm sorry... It's confidential." Next question, please. I think I get the point. Okay, that's good. And I hope you got the point as well. So thank you, Atty. Erwin, for answering these questions.
Let’s Recap
Can we do a recap? Alright, I'll do it. So we talked about the triple D framework when answering employee verification questions. So the first one is the default, which is the level you can answer at any time. Why? Because you're merely repeating what you've already stated beforehand. Next is discretionary. Now where it's preferable to get a waiver or authorization from the employee. So you don't put yourself at risk when you say something that's not favorable to the employee, or too personal. Yes, or too personal. And the third level is double discretionary because you not only go beyond the employee's discretion, and you also take into account your own discretion on whether it's a good idea to disclose these things.
Additional Resources
For most of you, this video was more than enough, and if it makes your life easier, then you're welcome. But there are some of you who will watch this video and end up asking more questions, such as, Attorney, what do you put in the Certificate of Employment? Or Attorney, how do we process the exit of an employee to get to this point? Or, Attorney, what else are they entitled to aside from the Certificate of employment?
If that's you, then I invite you to check out the "Complete Employee Discipline System" book where we teach you a roadmap to handling employee discipline cases from start to finish. So you know what the next step is, regardless of where you are in the process. The essential parts of the legal documents involved so you can use it to draft or check the legal documents that you put out and tips for every step of the process so you can validate the things you're doing in your business right now are in line with what the law says. Get the book at info.legalguide.ph/discipline today.
Now, to add to that, if you want us to tackle your question in our show, as we did for Julianne, go to www.legalguide.ph and click the submit topic button. Next, we'd like to know what's your biggest takeaway from today's video, so please write it down in the comments and let's talk about it. Last, if you feel we've earned a good rating, please give us a like and subscribe because it gives us feedback that we're doing a good job, and it encourages us to do more videos.
One last thing, your primary job is to protect your business. Be aware of the limits so you don't overstep your boundaries when you share information. But at the same time, be mindful of helping others. Come from a place of compassion and try to provide much allowable information so that your fellow business owners can make an informed hiring decision. Do your part to create a safer hiring environment for everyone because tomorrow, you may be the one asking for more information.
So wasn't that simple? Now go make better choices.
