Because employees and managers at SMU are often asked for job references, all employees should be familiar with Texas law pertaining to the disclosure of current or former employee information to perspective employers.
Texas State Law
Sections 103.001-.005 of the Texas Labor Code provide that an employer may disclose information about a current or former employee's job performance to a prospective employer at the request of the prospective employer or the employee. Job performance is defined as "the manner in which an employee performs a position of employment, including an analysis of the employee's attendance, attitude, effort, knowledge, behaviors, and skills. Importantly, the prospective employer need not seek an authorization from the employee to obtain this information.
TLC 103.001-.005 http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.103.htm.
The employer who provides information to the prospective employer cannot be held civilly liable for the disclosure, or for damages resulting from disclosure under Texas law, unless “it is proven by clear and convincing evidence that the employer knew the information disclosed was known by the employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed.” The statute similarly shields managerial employees and other employer representatives who are authorized to provide and do provide information in accordance with this statute. However, this statute does not require an employer to provide an employment reference to or about a current or former employee.
The giving of a negative job reference for a current or former employee who has or had filed a charge of discrimination under Title VII of the Civil Rights Act, as amended, as a form of retaliation is unlawful. The refusal to give a job reference where such refusal is motivated by a desire to get back at a current or former employee for filing a complaint of discrimination is also prohibited. However, where you have documented performance or conduct concerns in the personnel file of the individual for whom the reference is sought, the truthful disclosure of that information, though “negative,” is permissible.
Omission of Significant Information
If a manager decides to give a job reference for a current or former employee, care should be taken to provide an overall accurate depiction of the employee. Material information which might not be viewed positively by the prospective employer should not be omitted if it pertains to they type of job being applied for. For example, if there have been multiple verified complaints of sexual harassment against a male professor and he is applying to teach in an all-girls private boarding school, you should disclose that fact. If the employee was arrested for DWI and he is currently applying to a school district for a bus driver position, you should disclose that fact. In these cases, if you fail to disclose the information and the former employee hurts a third party in his new employment, it is possible that a claim might be brought against the University and the individual giving the incomplete reference.
It is important for employers to limit disclosures to information that pertains to “job performance,” as defined above. A recent Texas Appeals Court case has helped provide an example of what information can be included in an employee’s “job performance.”
In Graham v. Rosban Construction, Inc., Michael Graham sued his former employer, alleging defamation and intentional infliction of emotional distress, after his friend, who was posing as a prospective employer, was told that Graham was not eligible for rehire at Rosban because Graham chose to quit rather than take a drug test. Graham argued that the Texas job reference immunity statute did not apply because his refusal to take a drug test did not pertain to his “job performance.” The appeals court, however, disagreed and dismissed Graham’s claims. The court held that Graham’s refusal to submit to a drug test “in accordance with company policy and state mandate is easily considered part of ’an analysis of [Graham’s] attendance at work, attitudes, effort, knowledge, behaviors, and skills.’” Citing an earlier appeals court case, the court held that “‘there is no dispute’ that [a] supervisor’s statement regarding why [a] former employee was fired ‘concerned [his] performance of his duties…and his compliance with [the employer’s] policies.’”
An SMU manager who provides reference information on a broad basis should exercise caution to avoid losing the protection offered by the statute. Practical considerations include:
If the request comes by phone, take the caller’s name, company, and phone number and tell them that you will call back. Alternatively, you could ask the caller to fax or mail you a letter on the company letterhead indicating that they are seeking an employment reference on a former employee.
- Authorize and designate specific personnel to give out information to prospective employers and train those persons on the type of information to disclose. This will ensure uniformity of responses.
- Determine the type of information that will be released regarding employees and be consistent. Avoid highly subjective areas that may be difficult to be proven as true if challenged. Although the statute specifically allows disclosure of information about an employee's "attitudes" and "behaviors," this type of information is very subjective and carries the risk of being tainted by a manager's personal feelings toward an employee. Disclosure of more objectively verifiable information such as attendance, job knowledge, and skills is less likely to provoke challenges as to whether the information given is true or false.
- Review the employee’s personnel file so that you can refresh your memory of the employee’s education, training, experience, performance evaluations, commendations, discipline notices, etc. Ensure that the employee's file contains adequate documentation of the information disclosed.
The job reference should provide accurate, verifiable work-related information and avoid “off the record” remarks. If you believe a question is not appropriate you should decline to answer it or if you do not know the answer to a questions, you should say that you do not know.
- Consider obtaining the employees' written consent to providinformation to prospective employers. Managers may consider a blanket authorization when employees leave the University or request such consent of the employee to be provided by the prospective employer upon receipt of a reference request. Obtaining consent to disclose specified types of information provides additional protection in case of challenge by a former employee.
Do not hesitate to contact the Office of Legal Affairs if further clarification is needed.http://www.smu.edu/LegalAffairs/Contact%20OLA.aspx
The Texas Workforce Commission offers other tips for dealing with employee reference requests http://www.twc.state.tx.us/news/efte/job_references.html.
An article on the recent Texas Appeals Court case, Graham v. Rosban Construction, Inc. http://www.bracewellgiuliani.com/index.cfm/fa/news.article_speech/item/8512a99a-b255-4ce8-8c45-8d6b0aaf7939/Court_Issues_Rare_Decision_Under_Texas_Job_Reference_Immunity_Statute.cfm