Written by attorney Seth Alan Rosenberg

Washington Law Offers Employers Some Protection for References.

Washington State Law protects employers from suit for providing work-related references, provided certain conditions are met. RCW 4.24.730. Employers that disclose information about former or current employees to prospective employers or employment agencies will be presumed to have acted in good faith, and will be immune from liability for such disclosures if certain conditions are met. The conditions include:

· The disclosure cannot be unsolicited. The law's good faith presumption does not apply if an employer discloses information without having been asked for it. Thus, to be protected, a disclosure must be made in response to a specific request by a prospective employer or employment agency. In practical terms, this means that a manager should not contact a friend at another company and say, "I heard you were considering hiring Jane Doe. Let me tell you about her."

· The disclosed information must be related to the employee's job ability, job performance, or job duties. The law only protects employers if the information they disclose is related to: (1) the employee's ability to perform her/his job; (2) the diligence, skill, or reliability with which the employee carried out her/his job duties; or (3) any illegal or wrongful acts that the employee committed, which relate to her/his job duties. These limitations on the types of disclosures that are protected should not come as a surprise to employers. Just as employers should only ask job related questions during the hiring process, they should likewise only disclose job related information when giving references. Personal opinions about the employee's personality, honesty, character, and the like usually will not be protected.

· Employers should retain a record of the disclosures. Although the law uses the word "should" regarding record keeping, following its suggested approach will enable employers to take full advantage of the law's protections. The record should indicate: (1) the person to whom the disclosure was made, as well as the entity with which that person is associated; (2) the person making the disclosure and their position; (3) the date the disclosure was made; and (4) the information that was disclosed. The record should be retained in the employee's personnel files for at least two years from the date of the disclosure. Former and current employees have a right, upon request, to inspect disclosure records-along with the rest of their individual personnel file.

· Higher standard of proof. Employers won't be protected if they disclose information that is knowingly false, deliberately misleading, or made with reckless disregard for the truth. If there is a lawsuit, however, the employee has the burden of establishing, by "clear and convincing evidence," that a disclosure was false, misleading, or reckless. This is a tougher burden to meet than the usual "preponderance of the evidence" standard.

If you believe that your employer has violated this law, please contact the attorneys at The Rosenberg Law Group, PLLC in order to discuss your case. Reach us 7 days a week at (206) 407-3300 or [email protected].

Additional resources provided by the author

RCW 4.24.730

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