Thursday, October 23, 2008

Iowa Code 91B and References

In the modern business world, employers are often nervous about providing any information about current/former employees other than name, rank and serial number. This is true in Iowa, even though Iowa Code Section 91B.2 provides immunity to employers who, in good faith, provide information about current or former employees. There is very little Iowa case law with regard to this provision; however, more and more courts nation-wide are providing similar immunity to employers--especially when the current/former employee has signed a release.

Under 91B.2, an employer's representative who, upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current/former employee, provides work-related information about a current/former employee, is immune from civil liability unless the employer's representative acted unreasonably in providing the work-related information.

The Code Section defines "unreasonable" as: (a) violating a civil right of the current/former employee; (b) providing information to a person with "no legitimate and common interest" in receiving the information; (c) providing irrelevant information, provided information with malice, or providing information without a good faith belief that it is true.

Recently, a court in Michigan found that, even without such express statutory language, an employer is immune from claims as long as the current/former employee signs a release allowing the disclosure of work-related information. In the Purdy v. City of Kalamazoo case, a deputy chief received a negative evaluation and, rather than signing it, he chose to resign. He later applied for a position with another department and, as part of the application process, signed a release authorizing the disclosure of "any and all institutions to give ... any and all information concerning my previous employment."

The prospective employer contacted the City of Kalamazoo, who provided a copy of the deputy chief's personnel file--which included the unsigned evaluation. When the deputy chief did not get the job, he sued his former employer. In dismissing the case, the court stated that broad waiver and release language in an employment application removed any potential liability for damages resulting from the disclosures of the negative information.

As a result of the protections of the Iowa Code, and relevant court decisions, employers should feel more comfortable providing reference information; however, as a precaution, employers should strongly consider obtaining a written release from the current/former employee prior to providing the information.

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