Providing Reference Information and (an Unsuccessful) Effort in New Hampshire to Legislate Employer Immunity

The conventional wisdom for many attorneys providing HR law counseling to their employer clients is to advise those clients to adopt a policy not to provide substantive responses to reference requests by prospective employers relating to former employees.  The concern is that, at least to the extent the reference information might reflect poorly on the former employee, a former employer has liability exposure for legal claims by a former employee who ends up not getting a hoped-for new job.

The result?  Many employers provide a standardized response giving only the former employee’s job title and dates of employment (and sometimes the salary).

This clog in the flow of information can be a problem – one can easily see the potential issues that arise when an employee who has done something wrong at one employer is hired by another employer who has no idea of the employee’s work history.  At the same time, employees are understandably concerned that misleading information about them not be disseminated to potential future employers.

One work-around is for the prospective employer to provide the past employer with an authorization and liability release signed by the former employee.  Some (but not all) employers will be willing to give a more comprehensive reference with such a release in hand.

The New Hampshire legislature made an effort to address this issue in this past year’s session.  Senate Bill 22 would have added to New Hampshire law a provision that an “employer may disclose employment information regarding misconduct, work history, and competency about a worker upon request of a prospective or current employer.  An employer, and its directors, officers, and employees, who provide information in good faith and in accordance with this section shall be immune from civil liability for providing the information or for any consequences that results from the disclosure of the information unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that such information was false. “  The bill was deemed “inexpedient to legislate” and killed in March 2017.

Time will tell if further legislative efforts will be undertaken to address this question.

About the Author: Steven L. Winer https://orr-reno.com/our-people/steven-l-winer/

 

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