Am I Liable For Giving Job References?

As an employer, you have probably been asked to give a job reference for a former or current employee. If that employee had a record of unsatisfactory job performance, it is likely you agonized over the information you provided. You may have been afraid to give a negative reference for fear of being sued by the former employee. Like most employers in this situation, you probably gave a positive reference, albeit a lukewarmone, and felt vaguely guilty for not giving the potential employer the real story. However, thanks to a new law passed in the 1997 session of the North Carolina General Assembly, this dilemma is largely a thing of thepast.

What Does the Law Provide?

The law specifies that an employer who discloses information about a current or former employee=s job history or job performance to a prospective employer is immune from civil liability for either the disclosure itself or any consequences resulting from the disclosure. It does not matter whether the request was made bythe prospective employer or by the current or former employee.

What Can Be Disclosed?

The law grants civil immunity to employers who disclose information about a current or former employees. A job history or job performance. A Job history or job performance includes information regarding the suitability of the employee for re-employment, the employee=s skills, abilities and traits as they may relate to suitability for future employment, and, in the case of a former employee, the reason for the employee=s separation.

Are There Any Exceptions?

The law is straightforward, but there is one major exception. The immunity does not apply if the current or former employee can show the information disclosed by his or her current or former employer was false andthat the employer knew or should have known the information was false. The current or former employee must show the falsity by “a preponderance of the evidence”, which means the employee need only show it is more probable than not the information was false and the employer who gave it knew or should have known it was false.

Who is Considered an “Employer”?

Employees, agents, or other representatives of the current or former employer who are authorized to provide and who provide do information are covered by this law. A job placement service is also considered an employer under this law.

However, the law applies to a private personnel service or job listing service only in a limited way.Generally, private personnel services and job listing services are businesses who charge a fee to secure employment or to provide information about employment opportunities. The law extends immunity fromcivil liability to these types of businesses only to the extent that 1) the service conveys information derived from credit reports, court records, educational records, and information furnished to it by the employee or prior employers and 2) the service identifies the source of the information. The statutory definition of a private personnel service and a job listing service is very precise. If you suspect your business may fit within this definition, you should investigate further to determine whether the new law applies to you. When Does the Law Take Effect?The law becomes effective on October 1, 1997. Any job reference given on or after that date is covered by the law.

What Does the Law Mean For Me?

Beginning October 1, 1997, you may confidently give a truthful evaluation of the job performance of a current or former employee to any potential employer who is seeking such information. However, be sure this information is true to the best of your knowledge. Also, when giving a reference, make sure to stick to the employee=s job history and/or job performance. Remember the law defines job performance as

1) information regarding the suitability of the employee for re-employment,
2) the employee=s skills, abilities and traits as they may relate to suitability for future employment, and,
3) in the case of a former employee, the reason for the employees separation.

These are the only topics qualifying for immunity under the law. Personal details are specifically not included in the definition of job performance and should be avoided.

Contributed by
James R. Vann
VANN & SHERIDAN, LLP
Attorneys at Law
1720 Hillsborough Street, Suite 200 (27605)
Post Office Box 2445
Raleigh, North Carolina 27602-2445
Telephone (919) 510-8585
Facsimile (919) 510-8570
www.vannattorneys.com

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