Employer References: How Much Can I Say?

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A private employer, which is defined as an employer that is not a government entity, such as a state agency, statewide system, or political subdivision, is protected from liability for disclosure of certain kinds of information when contacted for reference. Information that an employer can share about a former employee when called for reference is as follows:

  1. Dates of employment,
  2. Compensation and wage history,
  3. Job description and duties,
  4. Training and education provided by the employer,
  5. Acts of violence, theft, harassment, or legal conducts documented in the personal record that resulted in disciplinary action or resignation and the employees written response, if any, contained in the employees personal record.

If an employer reveals anything that falls under Number Five, then the disclosure must be in writing with a copy cents contemporaneously by regular mail to the employee’s last known address

An employer is also shielded from liability if they have written authorization to disclose the information below and do actually disclose it to a former employee’s reference:

  1. Written employee evaluations conducted before the employee separation from the employer, and the employees written response, if any, contained in the employee’s personal record,
  2. Written disciplinary warnings and actions in the five years before the date of the authorization, and the employees written response, if any, contained in the employee’s personal record, and
  3. Written reasons for separation from employment.

An employer is not protected, however, if the former employee can demonstrate “by clear and convincing evidence” that any information given was false and defamatory and that the employer knew or should have known that the information was false and if the former employee can also prove malicious intent.

The statute is very infrequently litigated as a search and Westlaw revealed that only three cases has cited Minn. Stat. § 181.967, the statute that contains these restrictions on employers, only three times the statute was enacted in 2004. And none of the three cases that cited the statue went into any great depth or explanation interpreting the language.