Last week, we addressed the issue of giving an employment reference to a former or current employee’s prospective new employer.

     We discussed an Oklahoma statute that provides if an employer discloses information about a current or former employee’s job performance to a prospective employer, with consent of the current or former employee, the former or current employer is presumed to be acting in good faith and may be immune from civil liability for the disclosure. Immunity applies unless the good faith presumption is rebutted.

     The statute also applies to an employer’s agents or representatives, if the agents or representatives are authorized by the employer to provide the information.

     Note, however, that the statute provides that state agencies may disclose information regarding a current or former employee’s job performance to another state agency, without the employee’s consent.

     We ended the discussion last week with the question whether an employee’s consent may limit the information an employer may provide. Oklahoma courts have not addressed this issue. However, the Oklahoma Court of Appeals has ruled an employer is not required to provide any information, at all. The Court found the Oklahoma statute addressed here applies to an employer who decides to provide performance information to a prospective employer, but Oklahoma law does not impose a duty to provide information. Since immunity applies only if the employer is acting in good faith, if consent is limited, the wisest course may be to say nothing at all.

     Moreover, even if the employee’s consent is not limited, the statute does not give the employer immunity if the employer had knowledge it was giving false information, or acted with malice or reckless disregard for the truth. Of course, an employer may be forced to litigate whether the good faith immunity provision applies. Since the law does not provide for attorney fees if the employer wins, the statute’s protection is far from complete.

     Other laws may also apply to employee references, such as the law of defamation. And, in extreme cases, some courts in other states have found employers guilty of negligent referral when injury results from the former employer’s failure to disclose negative information about an ex-employee.

     If you are concerned about providing negative information in response to a request for references, you may wish to consult an attorney before deciding how to handle any such requests.