Counsel’s Corner: Job References, Blacklisting and Service Letters

Disclaimer: This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation.

Idaho

Overview.

Employers can legally disclose information to prospective employers about current or former employees’ job performance when requested by employees or prospective employers. They also are prohibited from engaging in blacklisting.

Coverage.

Job References: Public and private employers are covered by the job references provisions.
Blacklisting: Public and private employers are covered by the blacklisting provisions.
This summary is restricted to private employers.

Required Employer Actions.

No state statutory or regulatory provisions apply generally to private-sector employment.

Permissible Employer Actions.

Job References: Employers can legally disclose information to prospective employers about current or former employees’ job performance when requested by employees or prospective employers.

Prohibited Employer Actions.

Blacklisting: Employers cannot engage in blacklisting. They also cannot circulate a blacklist, or otherwise notify prospective employers that they have blacklisted current or former employees, in an attempt to keep such employees from being hired.

Employer Liability.

Job References: Employers that provide information in good faith about current or former employees’ job performance, professional conduct, or evaluations cannot be charged with libel. Employers are not liable for such disclosures unless there is clear and convincing evidence that they made a deliberate attempt to mislead, provided information that they know to be false, or offered a statement with reckless disregard for the truth.

Penalties/Remedies.

Blacklisting: Employers that engage in blacklisting and violate Idaho’s libel provisions can be fined up to $5,000, imprisoned for up to six months, or both fined and imprisoned.


Montana

Overview.

Employers must provide service letters, to discharged employees, that detail reasons for their termination, when requested in writing by these employees. Employers can’t engage in blacklisting.

Coverage.

Blacklisting: Public and private employers, and their agents, are covered by the blacklisting provisions.
Service Letters: Public and private employers are covered by the service letters provisions.
This summary is restricted to private employers.

Required Employer Actions.

Service Letters: Employers must provide a written statement to discharged employees, that detail reasons for their termination, when requested in writing by them.
Former employees, who submit written requests for a service letter to former employers, must advise them that employers’ service letter can be used in potential litigation.

Permissible Employer Actions.

Service Letters: Employers can issue truthful statements about reasons for discharged employees’ termination.

Prohibited Employer Actions.

Blacklisting: Employers can’t engage in blacklisting; they also can’t conspire or otherwise attempt to prevent employees who are discharged or voluntarily quit from obtaining new jobs.
Service Letters: If employers fail to give discharged employees a service letter that explains reasons for their termination, within a reasonable period of time, employers can’t provide service letters or such information about reasons for employees’ discharge to anyone else.

Employer Liability.

Service Letters: Employers that provide a truthful, written statement of the reasons for discharging former employees can’t be charged with libel. Such immunity is lost if employers refuse former employees’ written request for a statement of reasons for termination.

Penalties/Remedies.

Blacklisting: Employers that violate the blacklisting provisions are guilty of a misdemeanor and can be fined up to $500, imprisoned for up to six months, or fined and imprisoned.
Employers that are sued, for violations of the blacklisting provisions, can be ordered to pay punitive damages to employees who are harmed by the violations.
Service Letters: Employers that violate the service letters provisions are guilty of a misdemeanor, and can be fined up to $500, imprisoned for up to six months, or fined and imprisoned.

Employers that are sued for violations of the service letters provisions can be ordered to pay punitive damages to employees who are harmed by the violations.


Washington

Overview.

Employers can legally disclose information, to prospective employers or employment agencies about current or former employees’ job performance, when requested by prospective employers or employment agencies. They must provide service letters for terminated employees, when requested, and are prohibited from blacklisting.

Coverage.

Job References: Public and private employers are covered by the job references provisions.
Blacklisting: Public and private employers are covered by the blacklisting provisions.
Service Letters: Public and private employers are covered by the service letters provisions.
This summary is restricted to private employers.

Required Employer Actions.

Service Letters: Employers must provide service letters to discharged employees within 10 working days of former employees’ written request. Service letters must detail the reasons for termination and the date of termination.
Employees can request service letters up to one year after their discharge. Requests must be sent via certified mail.

Permissible Employer Actions.

Job References: Employers can legally disclose information to prospective employers or employment agencies about current or former employees when requested by prospective employers or employment agencies. Employers are presumed to act in good faith when they provide information about employees’:

  • job performance;
  • diligence, skill, or reliability in performing work duties; or
  • commission of illegal or wrongful acts that are related to work duties.

Prohibited Employer Actions.

Job References: Employers cannot disseminate deliberately misleading statements about current or former employees in job references.
Blacklisting: Employers cannot engage in blacklisting. They also cannot:

  • write, print, or publish any paper, pamphlet, circular, or book that contains statements about named persons to prevent them from obtaining or keeping a job; or
  • issue willful or malicious statements to discourage hiring of applicants or termination of employees.

Employer Liability.

Job References: Employers are not liable for disclosures about current or former employees’ job performance unless they:

  • knowingly disclose false information;
  • reveal information that is deliberately misleading; or
  • provide information with reckless disregard for the truth.

Penalties/Remedies.

Blacklisting: Employers that violate the blacklisting provisions can be found guilty of a misdemeanor and fined from $100 to $1,000, imprisoned for between 90 days to 364 days, or fined and imprisoned.


Oregon

Overview.

Employers can legally disclose information to prospective employers about former employees’ job performance when requested by former employees or prospective employers. They are prohibited from blacklisting.

Coverage.

Job references: Employers are covered by the job reference provisions.
Blacklisting: Employers and their agents are covered by the blacklisting provisions.
This summary covers requirements for private-sector employment, excluding industry/occupation-specific requirements.

Required Employer Actions.

No state statutory or regulatory provisions apply generally to private-sector employment.

Permissible Employer Actions.

Job references: Employers can legally disclose information to prospective employers about former employees’ job performance when requested by former employees or prospective employers.

Prohibited Employer Actions.

Job references: Employers can’t use job references to disseminate deliberately misleading statements about former employees.
Blacklisting: Employers can’t engage in blacklisting. They can’t conspire or otherwise attempt to prevent employees who are discharged or voluntarily resigned from obtaining new jobs. Similarly, they can’t circulate false written or printed matter to cause another employer to discharge or refuse to hire anyone. In addition, employers can’t use threats, force, or intimidation to prevent anyone from obtaining, keeping, or accepting a job.

Employer Liability.

Job references: Employers aren’t liable for disclosures about former employees’ job performance unless they:

  • knowingly disclose false or deliberately misleading information;
  • reveal information with malicious intent; or
  • furnish information that violates employees’ civil rights.

Employees who are terminated from their positions can’t sue employers for defamation because prospective employers received a good-faith job reference that revealed reasons for such terminations.

Penalties/Remedies.

Blacklisting: Employers that violate the blacklisting provisions, including anyone who commits such violation on behalf of a corporation, are guilty of a class C misdemeanor, and can be fined up to $1,250 and imprisoned for up to 30 days. Employers that violate the provisions related to use of threats, force, intimidation, or false written or printed statements to prevent anyone from being employed, including anyone who commits such violation on behalf of a corporation, are guilty of a class B misdemeanor and can be fined up to $2,500 and imprisoned for up to six months.

Employers that gain money or property from any such violations can be ordered to pay up to twice the amount gained instead of fines; gain is the amount of money or value of property derived from committing violations, less the amount of money or value of property returned to affected employees or lawful authorities prior to sentencing for such violations. Courts also can order payment of costs and reasonable attorneys’ fees for court-appointed attorneys (if applicable).

Employers that are corporations that violate the blacklisting provisions are guilty of a class C misdemeanor and can be fined up to $1,000. Employers that are corporations that violate the provisions related to use of threats, force, intimidation, or false written or printed statements to prevent anyone from being employed are guilty of class B misdemeanor and can be fined up to $2,500.

Corporations are guilty of misdemeanors if violations are:

  • committed by directors, officers, employees, or other authorized persons, within the scope of employment and on corporations’ behalf; or
  • committed, authorized, solicited, requested, commanded, or knowingly tolerated, by the board of directors or by certain authorized persons, within the scope of employment, and on corporations’ behalf.

Corporations that gain money or property from any such violations can be ordered to pay up to twice the amount gained instead of fines; gain is the amount of money or value of property derived from committing violations, less the amount of money or value of property returned to affected employees or lawful authorities prior to sentencing for such violations. Courts also can order payment of costs and reasonable attorneys’ fees for court-appointed attorneys (if applicable).