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Truthful References Law

The 1997 North Dakota Legislature enacted law which grants immunity from civil lawsuits to employers who provide truthful employment references.

Found in North Dakota Century Code (NDCC) 34-02-18, the truthful references law reads:

1 - An employer who truthfully discloses date of employment, pay level, job description and duties, and wage history about a current or former employee to a prospective employer of the employee is immune from civil liability for disclosure and its consequences.

2 - An employer who discloses information about a current or former employee's job performance to a prospective employer of the employee is presumed to be acting in good faith. Unless lack of good faith is shown, the employer is immune from civil liability for the disclosure and its consequences.
The presumption of good faith may be rebutted by a preponderance of the evidence that the information disclosed was:

a. Knowingly false:
b. Disclosed with reckless disregard for the truth;
c. Deliberately misleading; or
d. Rendered with malicious purpose.

3 - The immunity provided by subsection two (2) does not apply if the information provided is in violation of a nondisclosure agreement, or was otherwise confidential according to applicable law.

Providing Employment References
  • Ensure that only a supervisor or human resource professional with direct knowledge of the employee's performance provides the reference (as opposed to a co-worker, etc.).
  • Ask if the prospective employer will send you a signed document releasing former employers from liability for providing employment references. This is no longer crucial under the 1997 law, but still nice to have if possible.
  • Disclose only verifiable facts.
  • Refrain from discussing a former employee's general character, personality, attitudinal traits (e.g. "lazy," "uncooperative," "unreliable," "disloyal," etc.), or private life.
  • Document all statements and information given to the prospective employer.
Obtaining Employment References
  • Contact references provided. If applicant requests that some references not be checked, advise applicant that they may no longer be considered.
  • Seek reference information from individuals with personal knowledge of the applicant's work performance and behavior (the applicant's former immediate supervisor).
  • Use a pre-set list of questions or a reference form.
  • As always, avoid questions which could be discriminatory such as marital status, medical conditions, etc.

Are Employers Required to Give References?

No, there is no law compelling an employer to provide a reference. As an institution covered by the open records law, however, certain records must be released if requested.

Personal references should be treated in much the same manner as professional references. Department heads may choose to communicate with their employees that only designated personnel can provide professional references on behalf of the department; and stress that if any other employees provide a reference, they must distinguish it as a personal reference.

     
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    Last Updated: Tuesday, 22-May-2007 10:40:34 CDT
    Published by North Dakota State University