In yesterday’s CED,, we found specifics of the immunity available for giving references in the 50 states. Today, the rules for California and other states with special provisions, again with a nod to our new “50×50” reference guide.
Qualified Privilege with Restrictions
Several states offer a qualified privilege, with restrictions of one kind or another.
AR—reference restricted to:
- Dates and duration of employment
- Current pay rate and wage history
- Job description and duties
- Last written performance evaluation
- Attendance information
- Results of drug or alcohol tests administered within one year before the request
- Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee
- Whether the employee was voluntarily or involuntarily separated and the reasons for separation
- Whether the employee is eligible for rehire
CA—Qualified privilege for communications concerning the job performance or qualifications of job applicants that are based on credible evidence. A writer of a recommendation owes a duty to prospective employers and third persons not to misrepresent the facts in describing the qualifications and character of a former employee if making the recommendation would present a substantial, foreseeable risk of physical injury to the prospective employer or third person. The qualified privilege also permits employers to state, if asked, whether they would rehire someone.
CT—The employer must have the employee’s consent to release more than dates of service, salary, and job title.
KS—Absolute immunity is limited to the topics below as long as the information is provided in writing and in response to a written request from the prospective employer:
- Dates of employment
- Pay level
- Job description and duties
- Wage history
- Written evaluations
- Whether separation was voluntary or involuntary
- The reasons for separation
MI—Immunity only for information documented in personnel file.
MN—Offers statutory immunity in some cases.
MT—Immunity for a “truthful statement of the reason for discharge.” On request, must supply employee with a written statement of the reasons for discharge.
ND—Absolute immunity for dates of employment, pay level, job description and duties, and wage history. Limited immunity for further information.
SC—Offers immunity for dates of employment, pay level, and wage history, written employee evaluations, official personnel notices that record the reasons for separation, whether the employee was voluntarily or involuntarily released, and the reasons for separation and information about job performance.
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SD—Offers immunity for references in writing in response to written requests from prospective employers.
WA—Employer must keep a record of the individual or entity to which the information was provided. Within 10 working days of receiving a request from a discharged worker, the employer must furnish a signed statement setting forth the reasons for the discharge.
Giving references—different rules in every state. And of course, that’s not the only rule that changes from state to state—how about pay, leave, breaks? Actually, there are about 4 dozen key laws with important state differences. Where are you going to go to find out about the laws that apply not just to California, but everywhere you do business?
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