New Job Reference Legislation in Effect

5/10/2004

By Stacey A. Dekalb Esq.

On March 22, 2004, Governor Pawlenty signed into law new legislation that provides increased legal protection for employers that communicate job reference information about current or former employees.

What is said in a job reference is of concern to both employers and employees. Employers are often reluctant to provide any information about a former employee for fear of being sued. Former employees, on the other hand, are frequently concerned that their former employers will disparage them to a prospective employer. This fear on the part of employers and employees has meant that in most cases, prospective employers learn little more than dates of service or last position held about their potential hires.

Action may not be maintained without clear and convincing evidence
The new law provides that an action may not be maintained against an employer for the disclosure of specified information unless it is proven by clear and convincing evidence that:

   1. the information was false and defamatory; and
   2. the employer knew or should have known that the information was false and acted with malicious intent to injure the employee.

Specified information may be disclosed
The immunity provisions of the new law apply to the disclosure of the following information in response to a request by a private employer:

   1. dates of employment;
   2. compensation and wage history;
   3. job description and duties;
   4. training and education provided by the employer; and
   5. acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee's response, if any, contained in the record.

A disclosure regarding acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation must be in writing and a copy sent contemporaneously by regular mail to the employee.

Additional information may be disclosed with written authorization
With the written authorization of the current or former employee, the immunity provisions of this subdivision would also apply to the following disclosures by a private employer:

   1. written employee evaluations conducted before separation from employment, and the employee's written response contained in the record;
   2. written disciplinary warnings and actions in the previous five years and any written response contained in the record; and
   3. written reasons for separation from employment.

The employer must contemporaneously provide the employee, or former employee, by mail with a copy of information disclosed under this paragraph and to whom it was disclosed. A prospective employer or agency may not further disclose the information without written authorization from the employee.

Disclosure by public employers
The new law also deals with disclosure of certain personnel data by public employers. The immunity provisions would apply to the disclosure of all public personnel data and to specified private personnel data, provided that the employee gives written consent to the disclosure. The private data would include written employee evaluations conducted before separation from employment and any employee response contained in the record and written reasons for separation from employment.

Special provisions dealing with school districts
The new law contains special provisions dealing with school district disclosure of violence or inappropriate sexual conduct. The immunity provisions would apply to the disclosure of specified information from a school district from authorized persons regarding public personnel data relating to acts of violence or inappropriate sexual conduct and to certain private personnel data required to be disclosed. A disclosure pursuant to the law must be in writing with a copy sent contemporaneously to the employee.

The legislation also amends the statute dealing with the right of employees in the private sector to review their personnel records. Under current law, an employee may review the record only once at any time within one year after separation from employment. With the amendment, an employee has a right to review the record each year after separation for as long as it is maintained.

The new legislation took effect August 1, 2004. While the new Minnesota reference legislation should prove helpful to employers, it does not eliminate the need to exercise care in complying with the statute and providing job references. In most cases, it continues to be prudent for an employer to have a policy on giving job references that should be applied on a consistent basis when job references are sought from the employer. Given the new law, employers may also want to consider modifying their employment application forms to specifically provide the necessary consent and authorization for disclosure of certain information.

The above is a brief summary of the protection afforded to employers in giving job references. The law contains very specific requirements that must be complied with by all employers. Employers should consult legal counsel before making any attempt to apply the law or any information offered above to their specific situations. This summary was written by Stacey A. DeKalb, Esq., of Lommen, Nelson, Cole & Stageberg, P.A. Ms. DeKalb chairs the firm’s Employment Practices Section. Ms. DeKalb is admitted to practice in both Minnesota and Wisconsin. For more information about compliance with this law or other employment-related matters, contact Ms. DeKalb at 612-336-9310, 800-752-4297, or stacey@lommen.com.