If you recently lost your job, you might be concerned about what your former employer will say when asked to provide a reference. References often make the difference between landing a new job and receiving a rejection letter. If a former employer is giving out false or misleading information about you, it could doom your job search.
Nebraska used to be one of the few states that did not protect employers from liability for providing information on employees to prospective employers. However, Nebraska recently changed its law to give some protection to employers who provide certain facts about current or former employees, with consent.
If a former employer acts maliciously, knowingly provides false information, or otherwise crosses the legal line, and you lose job opportunities because of it, you may still have a legal claim.
Defamation and References
In a defamation lawsuit, the plaintiff (the person bringing the lawsuit) alleges that someone made false and damaging statements about him or her. In the context of employment, defamation claims almost always center on statements the employer makes about the employee once the employment relationship ends. Typically, a former employee claims that the employer made false, negative statements about the employee’s performance to a prospective employer who called for a reference, and the prospective employer decided not to offer the employee a job (or to rescind a job offer) because of the poor reference. (To learn more about defamation claims, see Defamation Lawsuits: Do You Have a Case Against a Former Employer?)
Nebraska Law on References
Nebraska used to provide no special protections to employers who gave out reference information on current or former employees. In 2012, however, Nebraska changed its law to protect employers who provide certain types of information, as long as they have the written consent of the employee.
Types of Information Covered
An employer may disclose the following types of information in response to a reference request about a current or former employee:
- the dates and length of employment
- the employee's current pay and compensation history
- the employee's job duties and job description
- the most recent written performance evaluation provided to the employee
- attendance information
- results of any drug or alcohol tests performed within a year of the reference request
- any violent threats, threatening behavior, or harassing acts that relate to the workplace or were directed at another employee
- why the employee is no longer working at the company (if applicable) and whether that separation was voluntary or involuntary, and
- whether the employee is eligible for rehire.
Written Consent Required
The employee must consent, in writing, to the release of this information. Nebraska law contemplates that the prospective employer will get this consent either by providing a separate form during the hiring process or by including it on job applications. If the consent is included on the application form, the consent must be in bold and in larger font than anything else appearing on the application. It must state the following language (or something similar):
"I, [name of employee], hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to [prospective employer]."
The consent form must be signed and dated. It is valid for six months after the date the employee signs it.
An employer that provides only the information listed above and has the employee's written consent is immune from (cannot be sued for) defamation claims by the employee. However, an employer can still be sued if the information it provides is false and the employer either knew it was false or acted maliciously or with reckless disregard for the truth. An employer can also be sued if it provides the information to discriminate or retaliate against an employee for exercising his or her statutory rights or for engaging in acts that are encouraged by the state's public policy.
Nebraska Service Letter Law
While some employees wish their former employers would keep quiet, some employees face the opposite problem: They want a former employer to provide information, but the employer isn't willing to speak up. Some employers are so fearful of defamation claims that they won't give references under any circumstances.
To remedy this situation, some states have enacted service letter laws. These laws require employers to provide former employees with certain basic information, in writing, about their employment.
Nebraska is one of the handful of states with a service letter law. However, the law has limited application: Only public service corporations, contractors who work for such corporations, and contractors doing business with the state are required to provide a service letter. Upon request of the employee, these employers must provide a letter stating the nature of the employee’s service, how long the employee worked there, and the reasons why they employee was discharged or quit. The statute sets out requirements for the form of the letter. Among other things, the law prohibits extraneous marks or symbols on the letter, no doubt intended (when it was passed, a century ago) to prevent blacklisting.
Getting a Reference
If you want a former employer to provide more information than required by the service letter law (or you aren’t covered by that law), you might consider signing a release: an agreement giving the employer permission to respond to prospective employers who call for a reference, and giving up your right to sue the employer for anything said as part of that process.
However, this makes sense only if you are absolutely certain that the reference will be positive. It may be worth giving up your legal right to sue in exchange for a reference that will help you land a position, but you don’t want to sign away your rights only to find that you have no recourse against a former employer who damaged your reputation and job prospects. For more information, see Getting Good Job References. For information on your legal rights during the hiring process, see Nolo's articles on Getting Hired.