Immunity for employment reference

Dear readers,

A Fargo reader sent me the following question:

I read and enjoy your column very much. I have a question for you.

I was recently (almost) let go at my job. If I hadn’t quit, I believe that I could have been fired.

I have reason to believe that I haven’t gotten a new job because of what some people at work have said about me. (No concrete proof, though I have never had a problem getting a job before.)

I have offered excellent references — from my boss and co-workers — but still have not gotten a job.

Is it possible to find out what exactly is legal in terms of what is allowed to be said about a co-worker or former employee in North Dakota?

For obvious reasons, I do not want you to use my name.

Thanks for writing! I asked Labor Commissioner Tony Weiler about this. Here’s what he said:

“I think you will find the following North Dakota Century Code section responsive to the question. It reads as follows:

“34-02-18. Immunity for providing employment reference.

1. An employer, or an employer’s agent, who truthfully discloses date of employment, pay level, job description and duties, and wage history about a current or former employee to a prospective employer of the employee is immune from civil liability for the disclosure and the consequences of the disclosure of that information.

2. An employer, or an employer’s agent, who discloses information about a current or former employee’s job performance to a prospective employer of the employee is presumed to be acting in good faith. Unless lack of good faith is shown, the employer or employer’s agent is immune from civil liability for the disclosure and the consequences of providing that information. The presumption of good faith may be rebutted by a preponderance of the evidence that the information disclosed was:

a. Knowingly false;

b. Disclosed with reckless disregard for the truth;

c. Deliberately misleading; or

d. Rendered with malicious purpose.

3. The immunity provided by subsection 2 does not apply if the information provided is in violation of a nondisclosure agreement or was otherwise confidential according to applicable law.

“Also, there is caselaw interpreting this section and that can be found at Forster v. West Dakota Vet Clinic, 2004 ND 207.”

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Email politics@wday.com (Subject: Ask your government).

You may also write to Teri Finneman c/o Forum Communications, Press Room, State Capitol, Bismarck, ND 58505.

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