In the not-too-distant past, University employers were warned because of liability issues not to freely give references to prospective employers for current or former employees. Many employers at the University limited references to verification of employment dates and job titles. Experience has shown that you’ll get as good as you give. Employers in the community who encountered the restricted references would in turn provide only limited references to University employers. The practice served no one well. In 1997, the Iowa Legislature passed Code §91B.2, legislation that limits an employer’s liability for providing work-related information. Following is a discussion of how to go about giving appropriate references under that law.
More than yes or no
An employer or representative may provide work-related information about a current or former employee if:
- it is requested or authorized by the current or former employee; or
- it is requested by a person who you believe, in good faith, to be a prospective employer or representative of a prospective employer.
The term “work-related information” includes such items as attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, rates of pay, promotions, disciplinary actions, and reasons for separation. Performance evaluation forms are a good source for work-related information.
Expressing an opinion about work performance is protected by the law according to standards similar to those for testimony in court: the opinion must be honest, based on reliable information, and can’t imply any facts that can be proved wrong. In a recent California case, an employer said an employee was “difficult” and “more trouble than she was worth.” These were deemed opinions, not slander. On the other hand, if the employer had called the employee “nuts,” the employer would have been implying mental illness and such comments may not be protected under the current law unless they were factual.
Focus on work-related
You should only provide information that is work-related. If you are going to express an opinion about an employee, it is best to stay within specific work situations. The same is true of providing personal information about the employee. While you may have information about the spouse or partner or children of the employee, or know what church she attends or the child-support he hasn’t paid, these are not work-related and should not be disclosed. Don’t be tricked into speculating about an employee’s propensity for misconduct based on your knowledge of non-work-related activities. Also, negative references given with malice or evil intent are not protected.
Requests for references are often made over the phone, and that’s acceptable, but provides no record. Some experts suggest a policy requiring written requests and providing only written references. The documentation is handy in the event of trouble, but the practice is cumbersome and time-consuming for both parties. It could even result in an employer looking elsewhere for a reference rather than having to do more paperwork. E-mail is a handy format that provides both speed and documentation, but if you elect to use it, remember such communications may be subject to disclosure under the public records law. There’s no requirement that you have a written request from an employee in order to provide references, but a release is often part of the application form. Requesting a copy of the form from the prospective employer also would provide a record.
There is no protection when providing information
- violates a civil right of the employee,
- is knowingly provided to a person who has no legitimate common interest in receiving it,
- is not relevant to the inquiry,
- is provided with no good faith belief in its truth, or
- is provided with malice or evil intent.
Civil rights violations can occur when any aspect of the transfer of information tends to discriminate against a person based on race, religion, color, sex, national origin, ancestry, age, marital status, pregnancy, disability, sexual orientation, and/or gender identity. Civil rights violations can also arise when certain information is disclosed, such as personal medical records, human rights complaints filed by the employee, and reports filed under a whistle-blower’s statute. Callers with “no legitimate and common interest” in this context include private investigators, the media, or lawyers outside the University, even when the information is work-related. Only prospective employers have a legitimate and common interest in the information.
The good-faith belief that the caller is really a prospective employer requires only that you believe it. If you are suspicious that the caller might be a creditor, for example, ask for a request in writing. The good faith belief that the information you are providing is true, however, requires proof. You should have good reason to believe that any information you pass on is true. While there may be complaints or other reports of misconduct in an employee’s file, you cannot pass this information on unless the allegations have been proved true. The best general rule for passing on information is: When in doubt, don’t.