Alaska Employment Law

Jump to Comments

Handling reference inquiries is tricky business. If you provide negative information about a employee, your company could be sued for defamation, intentional infliction of emotional distress, invasion of privacy, discrimination, or tortious interference with contractual relations.  In fact, there are even companies who pose as potential employers in order to provide former employees with evidence needed to pursue such claims.  Meanwhile, if you call for a reference check, you are often frustrated by the lack of useful information you receive.  Here are seven tips for a company to provide useful information while minimizing liability to the employee.

FOR THE EMPLOYER WHO RECEIVES THE REFERENCE REQUEST 

Tip # 1:  Designate by title one or two individuals at your company to handle all requests for a references – typically HR, the Office Manager, or the Owner of the company if it is a small business.  Train that individual to handle these requests.

 

Tip # 2:  Adopt a written reference policy and distribute that policy to all employees – place the policy in an employee handbook (review and revise every two years).  In the interim, it could be a separate policy.

 

Make sure your reference policy is in one of the two forms described below:

 

n      TYPE A:  The policy states that the company provides only a neutral reference (name, job title, dates of service, level of compensation), unless the employee signs an authorization and release.  This policy should also identify the contact person for reference requests. 

n      TYPE B:  The policy states that the company provides only a neutral reference unless the individual and the company agree on a reference letter and the employee consents to its distribution to potential employers.  This policy should also identify the contact person for reference requests.

 

Tip # 3.  Educate your managers and supervisors about the company policy.  Tell them that if they are called directly for a reference, they must inform the caller that it is company policy that only individuals designated in the policy may handle any reference requests and that they must direct all calls to those designated individuals.   

 

Tip # 4.  Have an attorney draft the authorization and release form for the Type A policy or provide you with a consent form and a reference letter format if you adopt the Type B form.  

           

               Note:  In Cox v. Nasche, 70 F.3d 1030 (9^th Cir. 1995), the Court of Appeals reviewed a release prepared by an Alaskan employer and held that the release would protect a previous employer from being sued by the ex-employee even if the previous employer’s statements were false or malicious (that is, the release provided the ex-employer with an “absolute privilege”).

 

Tip # 5.  Follow your policy and provide information beyond the neutral reference to a prospective employer only if (1) the employee has signed an authorization and release (Type A reference policies) that is in the employee’s personnel file, or if (2) the employee has signed a mutually agreed-upon reference letter and a consent form, which are in the employee’s personnel file.

FOR THE PROSPECTIVE EMPLOYERS 

Tip # 6.   Prepare an authorization and release form that job applicants can execute when requesting a reference from a previous employer.

 

Tip # 7.  If you don’t have such a form, ask the previous employer, “Would you rehire the person?”  You’ll get a good read on whether this employee was a problem.  

 

Kathleen Frederick is an attorney with Baxter, Bruce & Sullivan, PC, in Juneau, AK, where she represents both employers and employees. She has practiced employment law since 1991.