Hiring Minds Want to Know

Christopher Henderson

Your former boss may soon have the last word. These days, when a prospective employer calls him or her for a reference, they tend to get little more than name, rank, and serial number--in part because your old boss may be scared you'll sue for defamation if, say, the real reason you were fired gets out. The less information, the safer. For years, employers (mainly business owners) have been lobbying the Minnesota Legislature to provide them with extra protection against just such a threat--in the form of clear, concise language about what material is safe to share. Their pleas have fallen on deaf ears--until now.

House File No. 310 proposes to give employers easier access to prospective hires' personnel records from their previous workplaces, while also raising the standards of proof for plaintiffs in defamation suits. And while many are applauding the bill, saying it will help to ensure that "bad apples" don't keep getting jobs on the basis of inadequate information about their lousy work histories, a number of employment attorneys and privacy rights advocates are up in arms. They argue that the bill, if passed, would make it too easy for supervisors to malign the character of former employees, and harder for those employees to seek legal redress when it happens.

As things stand, employers are free to provide whatever information they care to about an employee, as long as it is truthful. (If it's not, they're sitting targets for defamation claims.) Yet even with little threat of legal action when only the facts are shared, employers remain skittish about what they can and can't disclose--again, better safe than sued. With this bill, sponsors say they've drawn up a list of just what an employer can divulge with certain impunity: dates of employment, wage history, job duties, and "all acts of violence, theft, harassment, or illegal conduct" that resulted in discipline, dismissal, or resignation. In addition, with the employee's written consent, employers can divulge written performance evaluations, disciplinary warnings and actions, and the reasons for termination.

"We've written this bill as tightly as possible," says one of the bill's sponsors, Rep. Jim Knoblach, a Republican businessman from St. Cloud. According to Knoblach, when potential employers aren't privy to this kind of information, it wreaks havoc with their work force. Although there is nothing on the books to prohibit releasing factual details about a past employee's job performance, Knoblach says that he and others in the private sector are often, and sternly, advised by their attorneys to keep their mouths shut. "We've been told that if we say more than if and when someone worked for us, we can get sued," he says; as a result, employers are forced to "hire blind"--a practice, he concludes, that puts both the establishment's owner and the general public at risk. "There are jobs that require people to go into someone's home," Knoblach points out, "and if I was the owner of something like a home health care agency, I'd want to know as much about my employees as possible."

Sure, concedes Sandy Neren, a lobbyist for the Civil Justice Coalition, which comprises nearly 50 state trade organizations, including the Minnesota Chamber of Commerce, "there have been a couple of cases in which employers wouldn't have hired someone if they'd been given more information." She cites the case in Young America last year against a high school biology teacher, Robert Pannier, who was charged with having sexual intercourse with a 15-year-old student. Neren claims the incident might have been prevented if his previous employer had been willing to disclose that Pannier, during his tenure there, had allegedly sent roses to female students on their birthdays. "During the trial, the former principal testified that he would have warned the school about Pannier's previous behavior if he wasn't afraid of being sued."

That's a ludicrous assertion, says Minneapolis employment attorney Judy Schermer. "If a teacher is a pedophile or a sex abuser, the [school] administration has a duty to pass that information on. This has nothing to do with employee references." Schermer is lobbying against the bill on behalf of the Minnesota Trial Lawyers Association; chief among her concerns is language in the bill that would make it much tougher for wronged employees to win defamation cases. "The power is already tipped in favor of the employer," she says, "and if this [bill] passes, it'll be easier for bosses to lie and get away with it."

"I'm concerned that the little guy doesn't get screwed," adds privacy rights advocate Rich Neumeister, who practices in St. Paul. After witnessing several incarnations of such legislation over the last five years, Neumeister figures it's only a matter of time before some version of the bill makes it into the lawbooks. This time around, he says, he's again set to wage war, if only over semantics: "I want everything to be clearly defined, so there's absolutely no margin for interpretation." For example, he says, there is a phrase in the current bill that reads, "Upon request an employer may disclose the following information..." Well, Neumeister asks, "What kind of request? Written, faxed, or phoned? How does the employer verify that the information they're disseminating is actually going to a prospective employer?"

It may be a bit of a stretch, he continues, but without prescribed safeguards, imagine an enterprising mind that could easily gather data on a few, a few dozen, or a few thousand individuals, develop a computer bank of their personnel files, then sell the information to a third party. "It's happened before," he contends, referring to a recent case in Louisiana in which "the names of people who'd applied for workers compensation were being put on a 'blacklist' that sold to local employers." Although that incident ended when law enforcement broke up the operation, Neumeister says the practice of selling personal information, including employment history files, remains more widespread than one might imagine: "There are public harvesters that use public data to build national data banks--from background checks, tenant screening companies, and credit companies. The fear is how open this data is to others."

Neumeister is also concerned about the vagueness of the term "illegal conduct" within the legislation. What qualifies? "It's too subjective," he argues. "This could mean anything from an act that results in a police arrest to something a boss considers inappropriate at the workplace." And what if the conduct was never prosecuted--and the employee, therefore, wasn't granted due process or given the chance to defend his or her innocence? What if a former supervisor just didn't like you? For Neumeister and others who question the bill's potential to throw the doors open to all sorts of nasty name-calling and retribution, passing it into law is an invitation for disgruntled former employers to punish ex-workers for behavior that may not be relevant in their subsequent positions. "In order for this bill to be fair to both sides," Neumeister says, "it has to be clear about what kind of information can be released and under what conditions." This one, he argues, isn't.

The bill cleared the House last week, and was scheduled to be discussed by the Senate Jobs, Energy and Community Development Committee on March 30. By all accounts, the bill is expected to pass. Still, Neumeister says, chances are good that his efforts will pay off: "Laws like this have been passed in 30 other states, and [past employers] are still not saying more than name, rank, and serial number," he chuckles, adding that the possibility of being dragged into court will continue to keep business owners, on the advice of their cost-conscious attorneys, from telling all.

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