by Alicia Gutierrez
Several states, including New Mexico, have now passed laws giving employers immunity if they are truthful while giving a reference for a former employee.
These laws are a direct result of the fear of lawsuits that has made the job reference virtually extinct in an era when it is most needed. References are more important than ever because the American work force is mobile as never before – almost 60 percent of the domestic workforce has worked for their current employer less than five years.
The situation is so bad that most large companies will do nothing more than confirm dates of employment and positions held by a former employee.
Being cautious while giving a reference is the prudent course for any company, but the fear of losing a lawsuit based on a reference has been greatly exaggerated. Even before the new laws gave employers protection, the reality was that if you were truthful – if you didn’t provide false or deliberately misleading information – you were unlikely to be sued.
To help employers, the New Mexico legislature in 1995 enacted a law designed to encourage employers to be forthcoming and truthful when disclosing information about former employees to prospective employers. This law says that an employer is immune from liability for comments about a former employee’s job performance if the employer (1) is requested to provide a reference and (2) acts in good faith.
No immunity is available if the information supplied (1) was knowingly false or deliberately misleading, (2) was rendered with malicious purpose, or (3) violated any civil rights of the former employee.
This law is relatively new and has not yet been tested in cases filed in New Mexico courts. Given that three exceptions are carved out of the grant of immunity, employers still have reason to exercise care when asked to provide a reference.
In addition, another separate statue makes it a misdemeanor under New Mexico’s criminal law to "blacklist" an employee. Blacklisting consists of an employer or its agent preventing or attempting to prevent a former employee from obtaining other employment.
Attorney Alicia Gutierrez practices employment, bankruptcy and real estate law. If you would like a list of the tips on giving employment references, please call her at (505) 843-9440.
