Employment Law and References

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					                                        EMPLOYMENT REFERENCES                            1


Employment references are often a “Catch-22” situation for the Minnesota employer. Employers want to
obtain as much information as they can about prospective employees through references from former
employers, yet they want to avoid giving references, so as to limit liability to former employees. Because
of employers’ fear of being sued over a negative employment reference, many Minnesota employers have
typically provided only dates of employment, job titles worked and last wage rate/salary in response to
employment reference queries.

Effective August 1, 2004, all Minnesota private employers have a measure of protection from lawsuits by
former employees based on employment references they have given. If the procedures set out below are
followed, no legal action can be maintained against an employer by an employee or former employee for
disclosing information to a prospective employer or employment agency, unless:
    1) the information disclosed is false or defamatory; and
    2) the employer disclosing the information knows or should have known that the information was
        false and acted with malicious intent to injure the current or former employee.

This new statutory standard places a heavy new burden of proof on the employee or former employee
who seeks to sue an employer or former employer for defamation or other claims related to the
employment reference.

In response to a request for a reference from a prospective employer, an employer may disclose the
following, either orally or in writing:

     1)   dates of employment;
     2)   compensation and wage history;
     3)   job description and duties; and
     4)   training and education provided by the employer.

In addition, the employer may disclose in writing acts of violence, theft, harassment, or illegal conduct
that is documented in the personnel record of the employee, if that conduct resulted in disciplinary action
or resignation, and the employee’s written response, if any is contained in the personnel record. A copy
of any such written disclosure must be sent by mail to the employee and his or her last known address, at
the same time as the disclosure is sent to the prospective employer.

With the written authorization of a current or former employee, a private employer may disclose the
following information to a prospective employer:

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  ã 2007 Borenstein and McVeigh Law Office LLC. The provision of this document does not create an attorney-client
relationship and readers are cautioned that this document cannot be relied upon as a substitute for seeking counsel on the
application of law to their individual circumstances.
      1) written employee evaluations conducted before the employee’s separation from the employer,
         and the employee’s written response, if any, contained in the employee’s personnel record;
      2) written disciplinary warnings and actions in the five years before the date of the authorization,
         and the employee’s written response, if any, contained in the employee’s personnel record; and
      3) written reasons for separation from employment.

The private employer must contemporaneously provide the employee or former employee with a copy of
any information that was disclosed under this paragraph, and the identity of the person to whom the
information was sent. The prospective employer or employment agency who receives the information
may not disclose the information received without the written authorization of the employee.

I. Sample Reference Policy

When [Organization] receives a request for information from another person or entity about you, either
during your employment or after your employment has ended, it is our policy to provide the following:

          a.      your dates of employment,
          b.      your last job description and duties, and
          c.      your compensation and wage history.

In addition, [Organization] is authorized by state law to report any acts of violence, theft, harassment, or
illegal conduct documented in your personnel record that resulted in disciplinary action or resignation,
and your written response, if any, that is contained in your personnel record.

In general, [Organization’s] policy is not to furnish any other information about your work performance
or your employment, unless you specifically authorize us to do so. If you do not authorize the
[Organization] to furnish any additional information, we will advise the requesting person or entity that ,
absent written authorization, our policy is to provide only the information set out in a. - c. above.

II.       Sample Written Authorization

I hereby authorize [Organization] to release relevant information and opinion concerning my past
employment record to third parties, such as prospective employers or employment agencies, upon their
request for an employment reference. The information which [Organization] may provide may include,
without limitation:
    1) dates of employment;
    2) compensation and wage history
    3) job description and duties;
    4) training and education provided by the employer;
    5) written employee evaluations conducted before your separation from employment, including any
        response you made in writing to those evaluations that is contained in your personnel record;
    6) written disciplinary warnings and actions, if any, in the five years before the date of this
        authorization, and your response in writing, if any, that is contained in your personnel record;
    7) written reasons for your separation from employment.

I understand that the information provided about me may be either negative or positive. However, I
unconditionally release [Organization], its employees, directors, officers, and agents, from any and all
liability for damages that may result for furnishing such information and opinion and in making such
statements.
Date: ________________________                  Name: _____________________________
                                                Address: ____________________________


Subscribed and sworn to this _____
day of _______________, 200_.

_____________________________
Notary Public



I do not authorize [Organization] to provide a reference regarding my past employment record to third
parties, including a prospective employer, with the exception of my:
    1) dates of employment;
    2) compensation and wage history
    3) job description and duties; and
    4) training and education as provided by the employer.


Date: _________________________                 Name: _______________________
                                                Address: _____________________

III.    Sample Reference Letter where No Consent is Given

To Whom it May Concern:

You have asked for a reference on John Doe, who was employed by [Organization] as an administrative
assistant.

John worked for us for 3 years, from ______ to _________. John’s duties included general support of
the accounts payable and accounts receivable functions, with some independent responsibility for
delinquent account collection. At the time of his departure, John’s salary was $ _____ per year.

Due to our company policy, we cannot furnish any additional information about John’s employment
history with [Organization].

Sincerely,

				
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