State Laws Protect Employers Who Give Job References

Issue: You are asked to give a job reference to a prospective employer of one of your former employees. For years your company has refused to provide any information other than dates of employment and final salary. However, you are aware that state legislatures have been passing laws that provide a measure of protection to employers that provide job reference information. Should you suggest a change in policy, and if so, what liability concerns would you face for providing job reference information?

Answer: Although the answer depends on several factors, including employee workplace privacy rights, defamation, qualified privilege for employers, union activity protections and discrimination, state law is increasingly coming into play. States are addressing employer concerns and writing laws to provide protection for employers from liability when providing job references for current or former employees.

Specific laws vary, but these laws generally protect:

• former or current employers;
• who provide information about “job performance” (which may be defined by law to include work-related characteristics and abilities, reason for separation from employment, etc.);
• to prospective employers (sometimes limited to a request by the employee; a few states require the request to be in writing).

The laws generally provide a presumption that information provided in such circumstances is given in good faith and is immune from civil liability.

Legal protections can be lost, however, if there is a showing that:

• the information given was false;
• it was provided with knowledge of its falsity or recklessly or maliciously.

A minority of states also will not protect information given in violation of a nondisclosure agreement or otherwise confidential by law, or in violation of any civil right protected by that state’s laws.

Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Wisconsin, Wyoming

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.