Just the Facts Liability in giving employment references

by Shellie Pruden, DCMS director of medical practice relations

With a tight job market, even physicians’ offices that have a stable work force are experiencing turnover. If an employee leaves your office to seek another job, you could hear from the new employer seeking references. Many businesses have adopted a policy to give the name of the employee, position, and dates of employment. That gives a prospective employer little to go on, but fear of a civil liability keeps many mouths closed. Liability certainly is something to consider if you are the one providing the information.

In 1999 the Texas Legislature passed a bill to provide more protection to those who give pre-employment references. Chapter 103.001 of the Labor Code states that “The Legislature finds that the disclosure by an employer of truthful information regarding a current or former employee protects employment relationships and benefits the public welfare. It is the intent of the Legislature that an employer who makes a disclosure based on information obtained by the employer that any employer would reasonably believe to be true should be immune from civil liability for that disclosure.”

The law encourages employers to provide more information by giving some protection from the historical civil liability. The statute allows an employer to disclose truthful information as it relates to job performance. Although a rather broad definition of performance, you may include information on the manner in which an employee performs a position of employment and include an analysis of the employee’s attendance, attitudes, effort, knowledge, behaviors, and skills. Liability is incurred if you disclose information you knew to be false at the time it was disclosed, or made the disclosure with malice or reckless disregard for the truth.

Although the new law offers more protection to employers than the previous law, it still is limited in scope. When giving a reference under the protection of the statute, the information can be disclosed only if the prospective employer or the employee requests it. Calling on your own to share the information limits your protection. No law can guarantee you won’t be sued; however, it gives you an opportunity to defend the claim. Make sure the information you give can be verified. Use caution when entering the realm of subjective evaluation. Absenteeism can be documented; “bad attitude” is far more difficult to define.

Richard Kobdish, partner with Fulbright & Jaworski, LLP, advises clients to adopt a policy. “Disclose name, position, and employment dates,” says Mr Kobdish. “Before disclosing any additional information, require that the employee sign a release preventing him from suing for disclosing information as it relates to his employment.” Without written permission, he advises employers not to release additional information.

Although the law became effective in September 1999, no lawsuits have been filed to test its viability. Because there is little or no incentive to change policy under this new law, many physicians’ offices have continued to give only the name, title, and dates of employment. TMA and DCMS policies reflect the conservative approach. Both organizations disclose employment dates and position. Jeppe Gustin-Ross, TMA director of human resources, says she confirms reason for leaving if it matched the information submitted on the application. She suggests that employers respond to actual questions and not offer more information than required.

“You can’t get into trouble for telling the facts,” she says. She pointed out the difference between personal and professional references. “It is acceptable for the company to offer a limited reference, but I usually ask for a personal reference from a supervisor.”

It is important to note that an employer may not disclose information related to a nurse’s refusal to commit an act that would be reportable to the state as improper professional conduct. This is protected under Article 4525d, Revised Statutes. If this question arises and you need more information, call the State Board of Nursing at 512-305-7400.

Without “clear and convincing evidence,” a conservative approach still is the best for protecting your practice from an employment law claim. The liability generally occurs in giving a bad reference rather than good. When asked to give a reference, stick to the facts and let the new employer read between the lines.