Department of Human Resources

Minnesota Job Reference Law

The "Job Reference Law" took effect on August 1, 2004. This law provides protection from litigation to employers who disclose certain information about current and past employees to potential new employers.

Who is covered under the law? All private, government and school employers who employ one or more employees.

What can a government employer disclose? All public personnel data and, with the employee’s written consent, written employee evaluations conducted before the separation and the employee’s written response, if any, contained in the personnel record; and written reasons for separation from employment.

What kind of protection is granted? All employers who provide truthful information about the employee pursuant to the terms of the statute are immune from suit. In order to bring a suit against a former employer, the employee is held to a higher burden of proof and must show by clear and convincing evidence that the information was false and defamatory and the employer knew or should have known the information was false and acted with malicious intent to injure the employee.

Please contact Mary L. Cameron (726-7912) or Judith Karon (726-6326) before you respond to reference inquiries. UMD Department of Human Resources will be happy to review drafts.

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MINNESOTA EMPLOYEE REFERENCE LAW

Minnesota has enacted a new law, M.S.A. SS 181.967, governing the issuance of references for current and former employees. This new law took effect August 1, 2004 and provides some immunity to employers when they give references to prospective employers and employment agencies.

What Minnesota employers can disclose:

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, or illegal conduct.

With respect to the last category, the disclosure must:

• Be documented in the personnel record;

• Have resulted in disciplinary action or resignation;

• Include the employee’s written response, if any; and

• Be in writing with a copy sent contemporaneously by mail to the employee’s last known address.

Minnesota employers can still be held liable. Even when disclosing the five categories protected under the reference law, you can still be subjected to civil liability if:

• The information was false and defamatory;

• The employer knew or should have known the information was false; and

• The employer acted with malicious intent to injure the current or former employee.

With written authorization from the employee, employers may also disclose in writing:

1. Written employee evaluations conducted before the employee’s separation and the employee’s response, if any;

2. Written disciplinary warning within five years of the authorization, and the employee’s response, if any; and

3. Written reasons for separation.

When disclosing this information, the employer must provide the employee with the following by sending it contemporaneously by mail:

• A copy of the information disclosed; and

• To whom the information was disclosed.

Prospective employers may disclose any written information they receive regarding a prospective employee without the written authorization of the employee.

Source: Gabriel D. Johnson, Intern: Hanft Fride, P.A., (218) 722-4766 (gdi@hanftlaw.com

APPENDIX TO MINNESOTA EMPLOYEE REFERENCE LAW

M.S.A. SS 181.967 ? Employment references

Subdivision 1. Definitions. For purposes of this section:

(1) “employee” means a person who performs services for hire and includes an officer of a corporation;

(2) “employer” means a person who has one or more employees and includes a designated employee or agent who discloses information on behalf of an employer;

(3) “personnel record” has the meaning given in section 181.960;

(4) “private employer” means an employer that is not a government entity, as defined in section 13.02; and

(5) “public employer” means an employer that is a government entity, as defined in section 13.02.

Subd. 2. Causes of action limited. No action may be maintained against an employer by an employee or former employee for the disclosure of information listed in subdivisions 3 to 5 about the employee to a prospective employer or employment agency as provided under this section, unless the employee or former employee demonstrates by clear and convincing evidence that:

(1) 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.

Subd. 3. Employment reference information disclosure by private employers.

(a) Subdivision 2 applies to the disclosure of the following information by a private employer in response to a request for the information:

(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.

A disclosure under clause(s) must be in writing with a copy sent contemporaneously by regular mail to the employee’s last know address.

(b) With the written authorization of the current or former employee, subdivision 2 also applies to the written disclosure of the following information by a private employer:

(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.

The employer must contemporaneously provide the employee or former employee with a copy of information disclosed under this paragraph and to whom it was disclosed by mailing the information to the employee or former employee.

(c) A prospective employer or employment agency shall not disclose written information received under this section without the written authorization of the employee.

Subd. 4. Disclosure of personnel data by public employer. Subdivision 2 applies to the disclosure of all public personnel data and to the following private personnel data under section 13.43 by a public employer if the current or former employee gives written consent to the release of the private data:

(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; and

(2) written reasons for separation from employment.