GIVING REFERENCES, ACCORDING TO THE LAW

Giving job references has become something of a modern-day science. Recently enacted state laws were supposed to help employers speak their minds on former employees, but most employers are still wary of a potential lawsuit or committing a state hiring violation.

So just what can and cannot be said? Business Week Online, with the help of Sharon Horrigan-Leonard, manager of state legislative affairs at the Society for Human Resource Management, went to the books to find out. Below you'll find relevant, full-text sections from the state laws of Louisiana, Kansas, and California. According to Horrigan-Leonard, most of the 23 other state laws on employment disclosure are based -- at least in part -- on the three listed here. The bills' language is not always easy to follow (especially California's), but a close read will help show, in detail, how different states interpret a different issue. And that could help you decide who you ultimately hire and fire.

"Everyone hopes that this will raise the comfort level of employers without making the hiring process more litigious," says Horrigan-Leonard. "The majority of these laws passed in 1996, so it's going to take a while to see how they work." Note: You'll find more of Horrigan-Leonard's comments at various points below.

LOUISIANA
1995 Senate Bill 688

Section 291. Disclosure of employment related information; presumptions; causes of action; definitions

A. Any employer that, upon request by a prospective employer or a current or former employee, provides accurate information about a current or former employee's job performance or reasons for separation, shall be immune from civil liability and other consequences of such disclosure provided such employer is not acting in bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a preponderance of the evidence that the information disclosed was knowingly false and deliberately misleading.

B. Any prospective employer who reasonably relies on information pertaining to an employee's job performance or reasons for separation, disclosed by a former employer, shall be immune from civil liability including liability for negligent hiring, negligent retention, and other causes of action related to the hiring of said employee, based upon such reasonable reliance, unless further investigation, including, but not limited to a criminal background check, is required by law.

C. As used in this Section, the following words and phrases shall have the meanings contained herein unless the context clearly requires otherwise:

(1) "Employer" means any person, firm, or corporation, including the state and its political subdivisions, and their agents, that has one or more employees, or individuals performing services under any contract of hire or service, expressed or implied, oral or written.

(2) "Employee" means any person, paid or unpaid, in the service of an employer.

(3) "Prospective employer" means any "employer," as defined herein, to which a prospective employee has made application, either oral or written, or forwarded a resume or other correspondence expressing an interest in employment.

(4) "Prospective employee" means any person who has made an application, either oral or written, or has sent a resume or other correspondence indicating an interest in employment.

(5) "Job performance" includes, but is not limited to, attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, and disciplinary actions.

KANSAS
1995 House Bill 2029

Section 1. (a) Unless otherwise provided by law, an employer, or an employer's designee, who discloses information about a current or former employee to a prospective employer of the employee shall be qualifiedly immune from civil liability.

(b) Unless otherwise provided by law, an employer who discloses information about a current or former employee to a prospective employer of the employee shall be absolutely immune from civil liability. The immunity applies only to disclosure of the following:

(1) Date of employment;

(2) pay level;

(3) job description and duties; and

(4) wage history.

(c) Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current or former employee from a prospective employer of that employee shall be absolutely immune from civil liability for disclosure of the following information to which an employee may have access:

(1) Written employee evaluations which were conducted prior to the employee's separation from the employer and to which an employee shall be given a copy upon request; and

(2) whether the employee was voluntarily or involuntarily released from service and the reasons for the separation.

(d) This section shall apply to causes of action accruing on and after the effective date of this act.

Sec. 2. This act shall take effect and be in force from and after its publication in the statute book.

Horrigan-Leonard: This means that someone has to submit a written request -- has to write to the former employer saying we would like some information on whomever. It doesn't say you have to respond in writing, but it must be based on written evaluations. This is a very strong law for people with human resource departments. The downside of this is that small employers probably don't have written performance reviews. The [smaller] shop doesn't have the resources to give that information out.

CALIFORNIA

In California, the legislature expanded the scope of priviliged publication or "broadcast" to include communications between prospective and past employers.

1994 California Assembly Bill 2778

47. A privileged publication or broadcast is one made:

In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, the prospective employer. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.

Horrigan-Leonard: The California bill doesn't require anything in writing. A prospective employer could call up a former employer and ask for a reference-check and nothing has to pass hands. If you have a really bad employee and you want to tell the honest truth, that's going to be protected verbally. And the positive for the small [business] is that that makes all employers a little more comfortable with exchanging information.

Edited by Dennis Berman