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Office of General Counsel
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.
Omission of Significant Information
University Policies
The University's policy on employee references for university staff and classified 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:
- The information is false;
- The information tends to bring the employee into disrepute, contempt or ridicule;
- The information is acted upon to the harm of the person by the prospective employer; and
- 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, or who has participated in an investigation of alleged discrimination, 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 or participating in an investigation 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. If the employee was terminated during probation, was non-renewed, or was terminated in another manner that did not provide the employee with notice of the reason for the dismissal or non-renewal, you should consult with OGC before providing a prospective employer with the reasons for the decision. The former employee may have the right to notice of the reasons and an opportunity to clear his name before that information is shared.
Coworker References
If you are asked to provide a reference for an employee you did not supervise, the privileges and immunities discussed above probably do not apply. If you agree to provide a reference for a coworker, make sure to be clear that you did not supervise the coworker and that you can only provide a personal reference. It is recommended that before you provide a personal reference, you contact the coworker to make sure they want you to do so. You are not compelled to provide references for coworkers. If you do, it is always best to make sure that your comments are truthful and are based on your own experience with the coworker. Never provide information that is based on gossip, rumor, or innuendo.
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:
- if the request comes by phone, take the caller's name, company and number and state that you will call back;
- alternatively, you could ask the caller to fax or mail you a letter on company letterhead indicating that they are seeking an employment reference on the former employee;
- review the individual's personnel file so that you can refresh your memory of the individual's education, training, experience, performance evaluations, commendations, discipline notices, etc.;
- if the current or former employee has not already asked for your permission to list you as a reference, you may want to call him or her and determine if they consent to your answering reference questions;
- the job reference should provide accurate, verifiable work-related information and avoid "off the record" remarks. If you believe a question is not appropriate you should decline to answer it of if you do not know the answer to a question, you should say that you don't know;
- when an employee is leaving your unit, you may want to discuss with him or her the development of a reference letter so that the former employee will be able to provide the letter to prospective employers; and
- make sure employees in your workgroup know how the department has decided to deal with reference calls. If a specific person has been designated to handle them, make sure that everyone in the department knows that.
Do not hesitate to contact the Office of General Counsel should you desire further clarification in this regard.
Resources
1. This briefing paper is limited to information related to employment references. Faculty references for students is guided by the university's policy on student records, SSM 107 and the Family Educational Rights and Privacy Act, 20 USC §1232g, as amended (per the US Code Web site), and ARS §15-141
2. A concise overview of the legal issues that impact both the institution and the supervisor giving the reference is provided in a paper from the National Association of College and University Attorneys entitled "College and University Employee References."
Revised January, 2012
Some of the legal material found at this site has been abridged from laws, regulations, court decisions, administrative rulings, ABOR and ASU policies and other sources. Further details may be necessary for complete analysis and understanding in particular matters. The information contained at this site, and related links, is not a substitute for professional legal counsel. Any discrepancy between the information at this site and ASU policy is not intended to alter or amend official ASU policy or procedure.
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