LL&D Law
Former Employee Recommendations - Part 1

by Susan B. Loving
10/19/2010 4:54:00 PM

     Assume an employee of your company recently resigned after other employees complained he was engaging in inappropriate sexual behavior toward women in the office. He then applied for a job elsewhere and you are contacted for a reference. Is it legal for you to tell his prospective new employer about this allegation?

     The answer is a bit complicated. Our answer below is part I of a two-part series on the issue of employee references.

     In deciding whether to give a reference, employers should begin by examining a little-known but very important Oklahoma statute that to some extent addresses this issue. The statute provides that an employer may disclose information about a current or former employee’s job performance to a prospective employer, upon request of the prospective employer with the consent of the current or former employee, or upon request of the current or former employee.

     If the employee requests or gives his or her consent to the reference, the former or current employer is presumed to be acting in good faith in providing the reference. If the employer is acting in good faith, it is immune from civil liability for the disclosure or any consequences of such disclosure.

     However, an employee may rebut the presumption of good faith by showing the information disclosed by the employer was false and the employer providing the information had knowledge of its falsity or acted with malice or reckless disregard for the truth. This lack of good faith must be shown by the employee, by a preponderance of the evidence.

     While the statute is helpful in clarifying the issue, several questions arise under the statute. First, may an employee give the employer permission only to disclose certain information about the employee? For instance, what if the employee in the case you describe, consents only to your providing information about evaluations he received during his employment? What if he consents only to confirmation of dates of employment? Moreover, what if the sexual harassment allegation was not investigated because the employee resigned? How much investigation must an employer do to avoid having a “reckless disregard for the truth”?

     Because of these questions, you may wish to consult with an attorney before deciding whether to give a reference, and if so, what you should say.

     Other issues related to this issue will be addressed in next week’s blawg.


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