If you have been in business long enough, you have had an employee or two leave for one reason or another. When that former employee is trying to get a new job and the potential new employer calls for a reference check, what are you allowed to say? What should you stay away from?
Under Michigan law, former employers are allowed to give information to an individual’s prospective employer regarding that individual’s job performance that is documented in the personnel file. The employer will be immune from civil liability for the disclosure and presumed to have been acting in good faith UNLESS it is established that: (1) the employer knew the information disclosed was false or misleading; (2) it was disclosed with a reckless disregard for the truth; OR (3) disclosure was prohibited by a state or federal law.
So that settles it, right? Not so fast. Opening up that file may be opening up a can of worms. From a practical standpoint, you may want to consider adopting a policy limiting the information that you provide to any prospective employer. Why? What you or someone that works for you disclose may be something that you all subjectively thought was not misleading or a reckless disregard for the truth, but it actually was. Do you want to take on that burden of having non-lawyers make tricky legal determinations? Maybe not. A lot of employers have begun to adopt strict policies on the information that they will provide to prospective employers because of this problem.
Think this doesn’t apply to you? Either it does now or it will in the future. Talk to a professional to determine if you are complying with the law and making the right decision for your business. Contact us today!
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