Can a Former Employer Contact Your New Employer About an NTE? Navigating Data Privacy and Labor Law in the Philippines

In the competitive landscape of the Philippine job market, employees often move between employers in pursuit of better opportunities. However, lingering issues from previous employment, such as a Notice to Explain (NTE), can sometimes resurface and complicate this transition. An NTE is a formal document issued by an employer to an employee suspected of misconduct, requiring the employee to provide a written explanation before any disciplinary action is taken. The question arises: Can a former employer legally contact a new employer to discuss or disclose details about an NTE? This inquiry intersects labor law protections under the Philippine Labor Code and data privacy safeguards under Republic Act No. 10173 (Data Privacy Act of 2012). This article explores the legal framework, potential violations, exceptions, and remedies available to employees in the Philippine context, providing a comprehensive overview based on established principles.

Understanding the Notice to Explain (NTE) in Philippine Labor Law

Under the Philippine Labor Code (Presidential Decree No. 442, as amended), an NTE is a cornerstone of due process in employee disciplinary proceedings. Article 292 (formerly Article 277) mandates that employers must observe substantive and procedural due process before imposing disciplinary measures, including dismissal. Substantive due process requires a valid ground for discipline, while procedural due process entails:

Written Notice: The employee must receive a written notice specifying the grounds for the potential discipline and the facts supporting it—hence the NTE.
Opportunity to Explain: The employee has a reasonable period (typically 5 days) to submit a written explanation and may request a hearing.
Hearing or Conference: If requested, a formal hearing must be conducted.
Decision: A written decision must follow, based on the evidence.

Failure to follow this process can render any dismissal illegal, entitling the employee to reinstatement and backwages, as affirmed in numerous Supreme Court decisions, such as King of Kings Transport, Inc. v. Mamac (G.R. No. 166208, June 29, 2007).

An NTE itself is not a final disciplinary action; it is preliminary. However, it contains sensitive details about an employee's alleged misconduct, performance, or behavior, which could include personal information such as dates, locations, witnesses, and the nature of the infraction (e.g., tardiness, insubordination, or theft). Once employment ends—whether through resignation, termination, or contract expiration—the NTE becomes part of the employee's personnel records. These records are generally treated as confidential under labor law principles, as they pertain to the employment relationship, which ceases upon separation.

Labor Law Perspective: Post-Employment Obligations and Restrictions on Disclosure

Philippine labor law emphasizes the protection of workers' rights even after employment ends. The Department of Labor and Employment (DOLE) oversees these matters through its rules and regulations, including Department Order No. 147-15 on the telescoped due process in termination cases.

Confidentiality of Employment Records

No Explicit Prohibition on Contact: The Labor Code does not explicitly prohibit a former employer from contacting a prospective or new employer. However, it implies a duty of good faith and fair dealing under Article 19 of the Civil Code (abuse of rights) and the principle of pacta sunt servanda in employment contracts. Disclosing an NTE without justification could be seen as an unfair labor practice if it interferes with the employee's right to seek new employment (Article 248 of the Labor Code).
Non-Compete and Confidentiality Clauses: Many employment contracts include non-disclosure agreements (NDAs) or post-employment restrictions. If the NTE relates to confidential company information or trade secrets, disclosure might be limited by these clauses. However, standard NTEs for general misconduct (e.g., absenteeism) do not typically involve such sensitivities. Breaching an NDA could expose the former employer to civil liability for damages.
Blacklisting or Negative Referencing: Informal "blacklisting" by sharing negative information like an NTE is frowned upon and can constitute constructive dismissal if it prevents re-employment in the industry. In San Miguel Corporation v. NLRC (G.R. No. 141466, October 19, 2007), the Supreme Court cautioned against employer actions that unduly prejudice former employees' future prospects. While not outright illegal, such contact could lead to a complaint for illegal dismissal or moral damages if it causes harm.
Verification of Employment: Employers often verify past employment through reference checks. Disclosing an NTE during such checks must be factual and limited to what is verifiable (e.g., dates of employment, position). Exaggerating or volunteering details about an NTE could violate the employer's duty not to defame the employee.

In essence, labor law prioritizes the employee's right to livelihood (Article XIII, Section 3 of the 1987 Constitution), making unwarranted disclosures actionable if they result in economic harm.

Data Privacy Law: Protecting Personal Information in Employment Records

The Data Privacy Act (RA 10173) is the primary legislation safeguarding personal data in the Philippines, administered by the National Privacy Commission (NPC). It applies to both public and private sectors, including employment contexts, as clarified in the NPC's Advisory No. 2016-02 on Data Privacy in the Workplace.

Is an NTE Personal Data?

Definition of Personal Data: Under Section 3(j) of RA 10173, personal data includes any information from which a living individual can be identified, directly or indirectly. An NTE qualifies as it contains the employee's name, employee ID, incident details, and potentially sensitive personal information (SPI) like health issues (if the misconduct involves medical leave) or union activities.
Sensitive Personal Information: Section 3(l) defines SPI to include information about an individual's health, ethnicity, or trade union membership. If the NTE touches on these, it receives heightened protection. Employment records, including NTEs, are explicitly covered under the Act's implementing rules (NPC Circular 2016-01).

Rules on Processing and Disclosure

Lawful Processing: Section 12 requires that personal data processing (collection, use, disclosure) be for a legitimate purpose, with consent or legal basis. For employment, processing is allowed under Section 16 (for employment purposes), but this is limited to the duration of the employment relationship. Post-employment, the basis weakens unless:
- The employee consents (e.g., via a job application waiver).
- It's required by law (e.g., court order).
- It's necessary for legal claims (e.g., if the former employee sues for illegal dismissal).
Prohibition on Unauthorized Disclosure: Section 19 prohibits disclosing personal data to third parties without consent or legal justification. Contacting a new employer about an NTE without the former employee's permission constitutes unauthorized processing. The NPC's Data Privacy Officers (DPOs) in companies must ensure compliance, and violations can result in fines up to PHP 5,000,000 or imprisonment (Sections 25-29).
Data Subject Rights: Under Sections 11-22, employees (as data subjects) have rights to access, correction, and erasure of their data. A former employee can demand that the NTE be expunged from records if no final decision was rendered, or object to its use. The "right to be forgotten" (influenced by global standards like GDPR) is implicitly supported through the right to erasure.
Cross-Border Implications: If the new employer is multinational, disclosure might involve international transfer of data, requiring safeguards under Section 21.

The NPC has issued guidelines emphasizing that HR data, including disciplinary notices, must be handled with strict confidentiality. In a 2020 NPC advisory, it warned against sharing employee data on social media or with unauthorized parties, extending this to inter-employer communications.

Potential Scenarios and Exceptions

While generally impermissible, certain situations may allow or require disclosure:

With Consent: If the employee authorizes reference checks (common in job applications), the former employer may share factual information. However, volunteering NTE details exceeds this scope unless specifically asked.
Legal Proceedings: A subpoena or court order (e.g., in a labor case before the NLRC) compels disclosure. Under the Rules of Court, employers must comply.
Criminal Investigations: If the NTE involves a crime (e.g., estafa), disclosure to law enforcement is mandatory under RA 10173's exceptions (Section 13).
Industry Regulations: In regulated sectors like banking (under the Bangko Sentral ng Pilipinas) or healthcare (DOH rules), background checks may include disciplinary history, but only through official channels.
Mutual Defense: If both employers are part of the same group (e.g., affiliates), intra-group sharing might be justified under legitimate business interest, but still requires data protection measures.

In practice, HR professionals are trained to respond to reference inquiries with neutral statements like "We can confirm dates of employment and position," avoiding specifics to mitigate liability.

Violations and Remedies for Employees

If a former employer contacts a new employer about an NTE without justification:

Labor Remedies:
- File a complaint with the DOLE Regional Office for unfair labor practice or constructive dismissal (if it leads to job loss). Remedies include backwages, damages, or attorney's fees (Article 279, Labor Code).
- Escalate to the National Labor Relations Commission (NLRC) for illegal dismissal claims.
- Seek moral and exemplary damages under Article 2219 of the Civil Code for bad faith.
Privacy Remedies:
- Lodge a complaint with the NPC for data privacy violations. Penalties include civil fines, criminal prosecution (imprisonment of 1-6 years), and compensation for damages (Section 25).
- File a civil suit for invasion of privacy under Article 26 of the Civil Code, seeking injunctions and damages.
- If defamation occurs (e.g., false NTE claims), pursue libel under RA 10175 (Cybercrime Prevention Act) if done online, or Article 353 of the Revised Penal Code.
Practical Steps:
1. Document the incident (e.g., emails, witness statements).
2. Demand cessation via a letter to the former employer.
3. Consult a labor lawyer or the Integrated Bar of the Philippines for free legal aid.
4. If unionized, involve the union for collective action.

The Supreme Court in Piccio v. Hontiveros (G.R. No. 217927, November 28, 2018) underscored that privacy rights extend to employment data, reinforcing employee protections.

Conclusion: Balancing Employer Interests and Employee Rights

In the Philippines, a former employer generally cannot contact a new employer about an NTE without risking violations of labor law and data privacy regulations. The Labor Code safeguards post-employment rights to prevent undue interference, while RA 10173 imposes strict controls on personal data disclosure, treating NTEs as protected information. Employees should proactively manage their records, such as requesting data erasure upon separation, and be cautious with reference consents.

Employers, in turn, must adopt privacy-by-design policies, training HR staff on compliant referencing. As the NPC continues to enforce the Data Privacy Act— with over 1,000 complaints annually as of recent reports—awareness of these laws is crucial. For personalized advice, consult a licensed attorney or the DOLE/NPC, as this article provides general guidance and not legal counsel. By upholding these principles, the Philippine legal framework fosters a fair job market where past issues do not unjustly haunt future opportunities.