By Alicia Gutierrez
To minimize exposure to liability for providing a negative or inaccurate job reference, employers should consider certain steps and precautions before responding to a reference inquiry.
If you feel giving substantive job references is important, as many employers do, you might consider having future or departing employees sign consent forms authorizing the employer to provide information in response to a reference request.
Under New Mexico law, where an employee consents to inquiries into qualifications and performance, a former employer is immune from liability for providing negative information about the employee in response to a reference inquiry – so long as the information is truthful and accurate. However, because statements are protected only when they are made to those having a legitimate interest in the statements, former employers should be careful to whom information is revealed, and should limit the release of information only to prospective employers.
To avoid a claim of retaliation, a former employer should take care to limit the disclosure to job-related information and should refrain from volunteering negative information about the employee, including whether the employee has sued the former employer for discrimination or other unlawful conduct.
If you prefer providing only bare bones information, your company might consider adopting a policy that limits responses to reference requests to dates of employment, positions held and salary information.
You also might consider referring all reference requests to your Human Resources Department or to a select number of managers – and tell all employees to whom requests for job references should be referred.
No matter what your position on references, former employers should take pains to verify that the information that is disclosed is accurate, since state law says that truth is a defense to a defamation claim by a former employee.
Attorney Alicia Gutierrez practices employment, real estate and bankruptcy law. She can be reached at (505) 843-9440.
