• Ohio's Qualified Immunity Statute Provides Protection for Less than Stellar Employment References
  • December 6, 2007 | Author: Gerald B. Chattman
  • Law Firm: Buckingham, Doolittle & Burroughs, LLP - Cleveland Office
  • Employers in Ohio worry that providing a potentially negative job performance reference about a less than stellar current or former employee in response to a request from a prospective employer will subject them to a risk of suit for defamation or invasion of privacy.  Therefore, although they really want to give colleagues fair and accurate appraisals of former employees, they refrain from doing so out of caution.  Ohio employers can put their fear to a qualified rest, given the protections afforded under Ohio’s Job Performance Initiative/Qualified Immunity statute.  The statute became effective on July 3, 1996.  This statute does not shield references or disclosures provided prior to July 3, 1996.  For some reason, this statute has not been well publicized and is not well known to Ohio employers.

    When asked for a reference, the reference must be made in response to an actual request.  Unsolicited references are not protected for a current or former employee. An employer is immune from civil liability when it responds to the request in good faith, meaning it provides only truthful information. 

    Under Ohio law, to overcome the presumption of good faith, the former employee must clearly prove one of the following:

    1.      That the employer knew the information provided was false and deliberately intended to mislead the prospective employer, or had a malicious purpose in disclosing the information; OR

    2.      That the employer’s release of information constitutes and unlawful discriminatory practice as defined in other sections of the Ohio Revised Code.

    The law benefits employers by putting the burden of proof on the employee and by protecting the employer from a good faith mistake. 

    Recently, there has been a nationwide trend in protecting employers who disclose information, and Ohio’s immunity statute follows that trend; however, the Ohio statute limits immunity disclosures to “job performance” information.  Although there is protection for disclosures made in good faith, employers should engage in a prudent course of action by limiting reference responses to dates of employment, last position held, and salary at the time of termination, unless additional information is specifically requested, e.g. attendance, reason for separation, etc. 

    The following suggested guidelines should help ensure responses to information requests are conducted in good faith, and therefore immune from any liability.

    1)         Act in good faith.  Never submit comments in a reference maliciously or with ill will.

    2)         Be accurate.  If unsure about information, exercise due diligence.  If an employee was fired for a valid reason, explain it.

    3)         Maintain records.  Documentary material on an ex-employee is always beneficial.  Businesses should maintain hard evidence of incidents knowing that an unsubstantiated allegation could lead to a lawsuit. 

    4)         Obtain consent.  In some states, consent of the former employee is required to release basic information such as work duration, duties and reports of violence or drug abuse.   

    Even where not required, such a practice creates a presumption of good faith.  Some companies avoid continued contact with a problematic ex-employee by requiring the prospective employer to obtain the consent from the employee.

    5)         Be Uniform.  Provide the same type of information about all employees.  A company should create a pattern of consistent information disclosures.

    6)         Use Waivers.  Inserting a waiver in a departing employee’s severance package releasing the business for all claims based on the voluntary disclosure of information about the employee to a third party can avoid liability.

    Finally, and on a related note, since Ohio provides protection for good faith disclosures, there is room for concern when a company fails to make a disclosure that could expose an employer receiving a request to harm.  Specifically, if a company discharges an employee for violent activity and then fails to reveal that fact when a subsequent employer requests a reference, the failure has triggered liability in some jurisdictions.  The protection, although a shield, could turn into a sword in the wrong hands.