How To Minimize Potential Liability For Employment References in Minnesota

Minnesota law provides protection to employers who disclose certain types of information in response to requests for employment references.  If an employer stays within the confines of the statute, a current or former employee must make a heightened evidentiary showing to prevail on a lawsuit against the employer related to the disclosure.

The types of information that employers can generally disclose under Minnesota’s employment reference law without an employee’s authorization are:

  1. Dates of employment;
  2. Compensation and wage history;
  3. Job description and duties;
  4. Training and education provided by the employer; and
  5. Acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response, if any, contained in the employee’s personnel record.  (Note: For this type of disclosure to qualify for protection under the statute, the disclosure must be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address).

If the employer has a written authorization from the employee, the employer may also disclose the following types of information about the employee:

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

See  Minn. Stat. § 181.967.

With limited exceptions, in order to maintain a cause of action against an employer for disclosure of the above-listed information, a current or former employee must be able to prove by clear and convincing evidence that:  (i) the information was false and defamatory; and (2) the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.

Takeaway:  Employers can minimize potential liability for employment references by limiting their disclosures to include only the information that is authorized under the statute.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on August 6, 2012, in Privacy Rights, Recordkeeping, Terminations and tagged . Bookmark the permalink. Leave a comment.

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