COUNTY OF SAN MATEO
HUMAN RESOURCES DEPARTMENT
Inter-Departmental Correspondence
DATE: April 21, 2014
TO: All Management Employees
FROM: Nicole McKay, Employee & Labor Relations Manager
SUBJECT: Employee Relations Bulletin 25 Reference Checks
Occasionally, you may receive written or telephonic reference checks requesting information about current or former employees. This bulletin contains guidance on how best to respond to these requests without placing you or the County at risk.
1. WHAT GUIDELINES SHOULD I FOLLOW?
We recommend that the following guidelines be followed in responding to employment questions:
(a) If you have any reason to believe that the person requesting information is not a potential employer or a licensing agency, do not give out information.
(b) Provide information only in response to a verbal or written request for information. Do not volunteer information without a request for such information.
(c) Do not give out any information that is not accurate, factual, and documented in the personnel file.
(d) If you do provide information, you must provide any significant negative information as well as positive information. (This point is explained in greater detail in section 3 below).
(e) The personnel file itself, or any written documents from the file should be released only with a release from the former employee or in response to a subpoena. Prior to releasing information in response to a subpoena, you should contact County Counsel to ensure that correct legal process is followed.
(f) Medical information should never be provided unless you receive an original signed release from the employee, and the release includes a specific statement that authorizes the release of that information. Care needs to be taken to ensure that you do not provide information beyond the scope of any medical request.
(g) Do not provide information if there is any connection, other than the employer-employee relationship, between you and the person about whom information is being sought without prior consultation with Employee Relations or your Personnel Services Analyst.
2. WHAT OTHER FACTS DO I NEED TO KNOW?
California statute provides a qualified privilege for information given to potential employers or licensing agencies who contact the County seeking information. A qualified privilege means that no damages can result from your action, provided that you are not found to have been malicious. In addition to the guidance in Section 1 above, the following criteria must also be met:
(a) Any statement you make must be made without malice. You and the County would be at peril if it could be shown that any statements which you made were made out of ill will toward the employee, if you lacked reasonable grounds for believing your statements to be true, or if the statements are made for a reason other than to protect the interest of the person seeking information (for instance, if your statements are made because of a previous grudge, a desire for someone else to get the job, etc.) If there is any fact that could indicate that you would be responding other than as an objective person, you should not respond. In these cases, seek guidance from your supervisor as to whether he or she, or some other manager, might provide the response.
(b) You must honestly believe the information you give to be true and should never give out erroneous information. To meet this criteria, we recommend that you give out factual information borne out by the person’s personnel file and that you not express opinions. If an employee was dismissed for excessive absenteeism and the dismissal and reason are documented in the file, it would be appropriate to state this fact. If the employee resigned and there is no written documentation stating that the employee was absent too often, it would not be appropriate to express your opinion that the employee’s attendance record was below standard.
3. WHAT ARE THE MOST COMMON PITFALLS?
The two primary pitfalls to avoid are (a) providing information to anyone not considered a “person with an interest” (California statute), and (b) providing positive information without disclosing significant negative information (California case law).
(a) A “person with an interest” is defined as someone who is in good faith considering hiring your employee, or is from a licensing agency. You should never give out information if you have reason to believe that the person is not who they say they are or if they are merely curious about an employee.
(b) Recent California case law has held employers liable for providing positive feedback to a future employer, while withholding significant negative information. The most extreme example was that of a school that provided positive reviews of a vice principal to a prospective employer, but failed to disclose that the vice principal had molested a child. Other examples that would clearly apply include acts of violence, stealing, and dishonesty. If you have an employee or former employee with a record of one or more negative acts, the best practice is to discuss with Employee Relations before communicating anything to the reference checker.
While violence, physical abuse, and stealing are clear examples of significant negative acts, Managers and Supervisors will need to use their judgment as to whether lesser acts meet this test. For example, you are not obligated to disclose a singular incident in which an employee was dishonest in explaining why he was 10 minutes late for work one day; but you would need to disclose that a person was dishonest in falsifying records that resulted in a family friend receiving preferential treatment over other clients.
Since this is an area that is likely to expose you to the most liability, we advise you to contact Employee Relations prior to providing reference information anytime it involves an employee or former employee who was terminated for cause, resigned in lieu of dismissal, or was subjected to the equivalent of a suspension as a result of wrongful conduct. Employee Relations can assist you in providing your response based on that employee’s specific circumstances.
4. WHAT ELSE DO I NEED TO KNOW?
Contact your Employee Relations Analyst any time you are unsure what to do.