Nebraska's New Job Reference Statute
On April 10, 2012, Nebraska Governor, Dave Heineman, signed LB959 into law. LB959 provides immunity to certain employers who provide job references for current or former employees. In passing this legislation, Nebraska joins the majority of states that provide limited immunity to employers who provide employment references. LB959 allows employers to disclose specific information about a current or former employee to a prospective employer upon receipt of the employee’s written consent. Specifically, employers may disclose:
• Dates and duration of employment;
• Pay rate and wage history;
• Job description and duties;
• Written performance evaluations (prepared prior to the date of the request and provided to the employee during employment):
• Attendance information;
• Results of drug or alcohol tests administered within one year prior to the request;
• Threats of violence, harassing acts, or threatening behavior related to the work place or directed at another employee;
• Whether the employee was voluntarily or involuntarily separated from employment and the reason for the separation; and
• Whether the employee is eligible for rehire.
LB959 creates a rebuttable presumption that employers who disclose employment information in accordance with LB959 are acting in good faith. The statute provides such employers with immunity from civil liability unless the employee can show, by a preponderance of the evidence, that the employer disclosed false information, had knowledge of its falsity or acted with malice or reckless disregard for the truth. Also, employers will not be immune from liability if the employer unlawfully discriminates or retaliates against an employee.
According to LB959, the employee’s consent must be obtained on a separate form from the employment application, or, if included as part of the employment application, the consent language must be in bold letters and in larger type than the remaining text. The consent form must contain specific statutory language and be signed and dated by the applicant.
The effective date for this legislation will be June 13, 2012. As is common with new legislation, a number of unanswered questions and practical considerations arise upon reading LB959. For example, do employers have an obligation to "audit" consent forms received from prospective employers to ensure the consent form complies with Nebraska law? Should employers develop their own consent forms and request that employees sign the same upon termination of employment? If the employee signs the employer’s consent form upon termination, is the employer then obligated to give a job reference? Are employers who provide job references obligated to provide all relevant information allowed to be disclosed pursuant to LB959? Or, for example, can employers choose to only disclose eligibility for rehire and the reason for termination but omit information related to performance evaluations and attendance? If this occurs, does an employer have a duty to disclose that it is providing a partial reference? Does an employer have an obligation to also share positive aspects of an employee’s performance so as to provide a "balanced" description of the former employee’s work performance? Can employers provide drug and alcohol testing results to prospective employers as described in LB959 despite Nebraska’s drug and alcohol testing laws that state that test results may only be provided to the employee?
Koley Jessen’s Employment, Labor and Benefits practice group will host a breakfast "roundtable" to discuss LB959 on Thursday, May 3 at 7:30 a.m. Space is limited and Koley Jessen may schedule additional round tables to accommodate interested participants. Please contact Heather Boozikee at 402-343-3784 or heather.boozikee@koleyjessen.com to reserve a place at this meeting. Or, contact a member of Koley Jessen’s Employment, Labor and Benefits practice group to discuss LB959 and related issues.