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Legal Matters: Fear-Free Job References |
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Written On: July/August 2005 |
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Written By: by Kris Tefft - AWB General Counsel |
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A vexing aspect of bringing on new staff or letting staff go is a job reference for the prospective, current or former employee. On one hand, you’d like to check references on would-be hires. On the other hand, you may field questions from other companies about former employees. Yet for years employment law attorneys and human resource managers have told you that it’s best not to give reference information, or limit disclosure to a minimalist "name-rank-serial number" approach.
This culture of silence frustrates employers and employees alike. When accurate references are unavailable by policy, employees with a poor record are more likely to be passed around, employees with a very good record may not get the recognition they deserve, and there is a danger in retail, banking and other customer service positions where unreferenced employees interface with sensitive and often personal information.
The reason for this caution is the fear of litigation if an honest, but possibly unfavorable, job reference costs someone a job. All it takes is a negative comment about someone to become grounds, however specious, for a defamation lawsuit. And, because these lawsuits turn largely on questions of fact, the defense is expensive as defamation cases are likely to make it through summary judgment and on to a jury.
This happened to many companies throughout the United States in the late 1980s and early 1990s. A string of highly publicized, seven-figure jury awards in job reference defamation cases spurred a great deal of interest by Trial Lawyers Inc., the nationwide plaintiffs’ bar, and buttoned the lips of HR managers everywhere. A number of Washington companies entered into costly settlements during that time period.
In response to the problem and the good public policy associated with promoting free and accurate disclosure of job-related reference information, a number of states began enacting statutes that provided immunity from civil litigation for employers who provide honest references in good faith. Between 1990 and 2005, the majority of states adopted such a law. Washington became the latest state to provide this protection in the 2005 legislative session.
Efforts had been underway since at least 1993 by the Association of Washington Business and its various partners in liability reform to secure reference-check immunity. In fact, a bill passed in the 1998 session only to be vetoed by then-Gov. Gary Locke, over the inaccurate claim that this kind of law would promote "blacklisting" workers, especially over participation in union matters.
In the 2005 session, Rep. Judy Clibborn, D-Mercer Island, pulled the stakeholders together again on the issue, and this time HB 1625 was passed with nearly unanimous support. It was signed by Gov. Christine Gregoire and becomes law on July 24, 2005.
HB 1625 is a straightforward law that simply states that current or former employers who act in good faith giving out job-related information at the request of a prospective employer are immune from civil liability. The employer is presumed under the law to be acting in good faith, and in order to overcome that presumption in court, an employee would have to demonstrate, by a heightened burden of proof, that the reference was knowingly false, deliberately misleading, or given with reckless disregard of its truth or falsity. Employers are advised in the law, but not required, to maintain a written record of those persons to whom references are given.
In other words, tell the truth and you’ll be immune from litigation—even if the truth is uncomfortable for a former employee. Hopefully this new law will be a step toward changing the culture of silence in job references and will help employers, employees and consumers alike when it comes to the hiring process.
If you have questions on this new law, contact your employment law counsel or Kris Tefft at KrisT@AWB.org.
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