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EMPLOYEE REFERENCES

        Because you are frequently asked for job references, you should be familiar with university policy as well as state law pertaining to the disclosure of current or former employee information to prospective employers.

University Policies

        The University's policy on employee references for classified, service professional and administrative staff can be found at SPP 1104. The policy for faculty and academic professional is available at ACD 814. The University has not adopted a specific policy on job references for student employees(1); however, the guidance provided in either of the foregoing policies would apply.

State Law

        ARS §23-1361 provides that it is not unlawful for an employer to provide to a requesting employer information concerning a person's education, training, experience, qualifications, job performance, professional conduct or the reason for termination to be used for the purpose of evaluating the person for employment. The information may be provided orally or may be provided in writing. A copy of any written communication must be sent to the employee's last known address; however, a copy of any correspondence need not be sent to the employee if the employee is seeking another job within Arizona State University, regardless of campus.

        Qualified Immunity

        Although it is difficult to give a precise definition of defamation (because courts frequently describe it in different terms), generally a defamatory statement is one which tends to injure a person's reputation or to diminish their esteem, respect or good will. Defamation does not include what is generally called pure opinion. For example, a statement that the employee is truly obnoxious has been held to be not defamatory. Also, a statement that one would not rehire an employee has also been held to be not defamatory. The term "reckless disregard" means that the communicator entertains serious doubts as to the truth of the information provided to the third party.

        To summarize, an employer is immune from civil liability in connection with providing information to a prospective employer unless all of the following are found to exist:

  1. The information is false;

  2. The information tends to bring the employee into disrepute, contempt or ridicule;

  3. The information is acted upon to the harm of the person by the prospective employer; and

  4. The communicator knows the information is false or entertains serious doubts about its truth.

        Absolute Privilege

        The statute establishes an absolute privilege for communications concerning employees made by an employer to a governmental body or agency and which are required by law or which are furnished pursuant to written rules or policies of the governmental body or agency. Under an absolute privilege, there is no liability for a defamatory statement under any circumstances.

Retaliation

         One caution. The giving of a negative job reference for a current or former employee who has or had filed a charge of discrimination under Title VII of the Civil Rights Act, as amended, as a form of retaliation (to get back at) is unlawful. The refusal to give a job reference where such refusal is motivated by a desire to get back at a current or former employee for filing a complaint of discrimination is also prohibited. However, where you have documented performance or conduct concerns in the personnel file of the individual for whom the reference is sought, the truthful disclosure of that information, though "negative," is permissible.

Omission of Significant Information

         If you determine to give a job reference for a current or former employee, care should be taken to provide an overall accurate depiction of the employee. Material information which might not be viewed positively by the prospective employer should not be omitted if it pertains to the type of job being applied for. For example, if there have been multiple verified complaints of sexual harassment against a male professor and he is applying to teach in an all-girls private boarding school, you should disclose that fact. If the employee was arrested for DUI and he's currently applying to a school district for a bus driver position, you should disclose that fact. In these cases, if you fail to disclose the information and the former employee hurts a third party in his new employment, it is possible that a claim might be brought against the University and the individual giving the incomplete reference.

Practical Considerations

        ASU department heads should not be unwilling to be candid and factual in connection with information provided to prospective employers. Practical considerations include: