Employees request references in a variety of situations. For example, current employees may ask for a reference when changing careers or relocating. Former employees who leave on good terms often seek a reference to give to a prospective employer. Reference requests may also arise with involuntary terminations, such as when the termination is not performance-related as in a reduction in force. Alternatively, a disgruntled former employee may request a letter of reference in exchange for the employee’s release of claims or dismissal of a pending lawsuit against the employer. In all of these instances, you must be aware of your rights when providing performance– related information regarding an employee or former employee.
Ohio law offers employers immunity from civil liability when they provide truthful information to prospective employers pertaining to a current or former employee’s job performance if the information is requested by the employee or the prospective employer. According to Ohio Revised Code §4113.71, an employer is not liable to the employee, the prospective employer, or any other person for harm caused by the employer’s making of the truthful disclosure or any information contained in the disclosure.
Notably, this immunity for employers is “qualified;” meaning, it is not without exception. For example, this law’s protection applies only when the performance–related information is requested by the former employee or the prospective employer. If an employer provides performance-related information without a request for it, the employer can not look to Ohio Rev. Code §4113.71 for protection.
The law contains several additional exceptions to its shield against civil liability. An employer is not protected if the employer discloses performance-based information in any of the following situations:
(1) with the knowledge that the information is false;
(2) with the deliberate intent to mislead the prospective employer or another person;
(3) in bad faith;
(4) with malicious purpose; or
(5) when the disclosure of the information constitutes an unlawful discriminatory practice under Ohio law, such as providing negative performance- based information only with regard to African-American or female employees.
The employee bears the burden to prove that the employer’s disclosure occurred in one of the prohibited contexts.
Despite the protection offered by Ohio Rev. Code §4113.71, many employers choose not to provide any references, whether based on performance or not. Other employers provide only “neutral” letters of reference, limited to objective criteria such as dates of employment, job title, and last rate of compensation. Employers often follow one of these alternative approaches as a precautionary measure to avoid a lawsuit by the current or former employee, which could involve claims of defamation or discrimination.
Importantly, whether an employer chooses to provide performance-based information, limited objective information, or something in between, the employer must apply its policy consistently. Picking and choosing which employees will get detailed references, whether negative or positive, and which will get neutral references or none at all, could give rise to a claim that the employer treats employees who are in a protected class (e.g., based on race, gender, age, disability, religion) less favorably than employees who are not in a protected class. As noted above, Ohio law does not shield an employer from liability if the employer’s disclosure of performance-based information is an unlawful discriminatory practice.
When dealing with job references, employers can learn from the old adage: “An ounce of prevention is worth a pound of cure.” Employers should consult with legal counsel to discuss the reference policy or practice that best meets the employer’s business needs. If an employer elects to provide performancerelated information upon request, counsel can offer suggestions to keep the employer within Ohio law’s protection against civil liability.