Getting and Giving Job References

By Janice L. Hirsch

Fear of defamation lawsuits has caused many employers to adopt policies strictly limiting the information a company will disclose about employees. At the same time, fear of negligent hiring lawsuits has caused many employers frustration when other employers (who have adopted the same policies) fail to reveal pertinent information about employees.

These competing concerns can create confusion about the risks of giving and getting reference checks. Fortunately, Oregon law provides some protection against defamation lawsuits for former employers who, in good faith, provide relevant employment information about former employees.

Statutory Protection for Employers Who Provide References.

ORS 30.178 allows employers to respond to reference check requests without liability, provided:

1. The reference check is requested by the prospective employer or the former employee (in other words, not volunteered by the former employer);
   
   
2. The reference check is on a former (not a current) employee;
   
   
3. The information disclosed is limited to the former employee's job performance; and
   
   
4. The former employer provides the information in "good faith."

"Good faith" does not exist if the former employer provides knowingly false or deliberately misleading information or acts with malice. Additionally, the protections of ORS 30.178 do not protect a former employer from liability if the employer violates the civil rights of the former employee. This means that employers may not disclose information about a former employee's "protected class" or "protected activities."

"Protected class" information relates to race, age, sex, national origin, disability, pregnancy, marital status, or other classification protected by law. "Protected activities" are acts protected by statute or public policy, such as filing a workers' compensation claim, taking family or medical leave, serving on jury duty, or participating in military service. Protected activities also include filing a complaint alleging violations of employment laws (such as harassment) or participating in employment discrimination hearings.

Because employers may not discriminate against individuals based on these characteristics, information concerning an employee's protected class or activity should not be disclosed in a reference check.

If information about a former employee's protected class or protected activities is disclosed, both the former and the prospective employer may have exposure to liability if the prospective employer denies employment based on the disclosure.

Liability for Failing to Conduct Adequate Reference Checks.

An employer who fails to conduct adequate reference checks may be liable for the tort of "negligent hiring." To establish a claim for negligent hiring, the injured party must prove that a "non-negligent" background check would have disclosed information making it foreseeable that the applicant would injure the plaintiff.

Although liability for negligent hiring turns on whether the employer conducted a reasonable background check, it is often difficult to convince former employers to disclose pertinent information. However, even if the former employer is unwilling to disclose any information, documentation that the inquiry was made is important evidence that the employer took reasonable steps to learn about the applicant's background.

To encourage cooperation, prospective employers may wish to advise former employers that the information obtained will be maintained confidentially to the extent allowed by law. Prospective employers may also ask applicants to sign consent forms authorizing past employers to release information regarding relevant job-related traits or propensities.

Liability For Failing to Give Material Information About a Former Employee.

Although Oregon courts have not addressed the issue of whether employers can be held liable for failing to disclose information about a former employee's known dangerous tendencies ("negligent referral"), other jurisdictions have held a former employer liable for nondisclosure of material information. For example, in Randi v. Livingston Union School District, the California Court of Appeals held that former employers of a high school vice principal, accused of molesting a 13-year old girl, may be liable for failing to disclose that the former employee was accused of sexual misconduct with female students.

Tips for Giving References.

• Designate One Person to Respond to All Inquiries. Institute a strict policy that all inquiries must be directed to a designated individual trained in providing appropriate and lawful responses. Supervisors, managers and co-workers should be instructed not to provide information about current or former employees, even if the employee "asks" for the reference.
  
  
• Require Requests for Information to Be In Writing on Company Letterhead. ORS 30.178 protects good faith disclosures to "a prospective employer." By requiring the request for information be on company letterhead, the former employer has some assurance of the identity of the inquiring entity. A written communication provides a clear record of the information requested and the identity of the requestor.
  
  
• Consider Obtaining a Signed Consent Form From Departing Employees. As part of the exit process, employees can be presented a form allowing the disclosure of employment information. If an employee declines to sign, an employer can report that the employee declined to authorize release of the information.
  
  
• Do Not Disclose Information About Protected Activities or Protected Class Status.
  
  
• Be Accurate. Do not exaggerate, and do not omit material information.
  
  
• Do Not Be Malicious. Even truthful information can be the basis for liability if it is provided with a malicious or vindictive intent.
  
  
• Record the Information Disclosed.
  
  
• Seek the Assistance of Legal Counsel. Prior to providing a response to a request for information, employers may want to consult with legal counsel, particularly if the former employee has exhibited violent propensities or other characteristics which, if not disclosed, could potentially form the basis for a claim of "negligent referral."
  
  
• Record the Request. Even if a reference is not forthcoming, make a written record that the request was made and that no response was received.

Tips for Getting References

• Limit Requests to Permissible Information Relevant to Job Performance.
  
  
• Assure the Former Employer That the Requested Information Will Only Be Used for Lawful Purposes.
  
  
• Obtain a Release From Applicants. Potential employers may require an applicant to sign a form consenting to the release of appropriate employment information from former employers. Providing a copy of the release to the former employer might encourage the employer to disclose the requested information.
  
  
• Utilize ORS 30.178. Employers may not know that there is statutory protection for providing accurate, good faith employment information about former employees. Fax a copy of the statute to the former employer.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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