Employers are often uncertain about how to handle requests for information regarding former employees and for good reason.
An employer can become liable to a former employee for defamation if they feel that the reference is false or misleading. Likewise, an employee who has filed a complaint or expressed a concern about discrimination or other violation of the law may claim that a bad reference is retaliation.
Accordingly, many employers are unsure how much information should be provided in response to a reference request.
Under Kansas law, an employer is absolutely immune from civil liability for disclosing the following information regarding a former employee:
Dates of employment
Job description and duties
Additionally, an employer is immune from civil liability for providing the following information in response to a written request concerning a former employee from a prospective employer:
Written employee evaluations that were conducted prior to the employee’s separation from the employer
An employee should be given a copy, if requested
Whether the employee was voluntarily or involuntarily released from service and the reasons for the separation
However, a former employee could seek recovery from an employer if the information is provided in bad faith. The above rules also do not guarantee protection from retaliation claims based on federal law.
Based on the above concerns, we recommend that employers adopt the following policies to further protect their businesses from liability:
Obtain a former employee’s permission to release information and keep a record of the written consent in their personnel file following separation
Designate a specific person to handle all reference requests
Instruct supervisors and managers to refer all reference requests to that designated person
Make sure that all personnel records are accurate and updated so that inaccurate information is not inadvertently provided merely because a file had not been kept up to date
How Kennedy Berkley Can Help
Kennedy Berkley’s employment law attorneys can assist you in preparing employee handbooks, drafting policies and training your workforce in order to protect your business. We can also guide you in documenting worker discipline, and preparing for and defending claims brought by employees.