Originally published August 02 2005

The 2005 Washington State statute on Employee Information Disclosure and Employer Immunity provides employers with statutory protection that does not appear much more extensive than the protection already provided through past court rulings, although having it clearly stated in a statute helps. The new statute provides that an employer that discloses information about a current or former employee to a prospective employer or an employment agency, at that employer or agency's specific request, is presumed to be acting in good faith and is immune from civil or criminal liability. This immunity applies, however, only if the disclosure relates to one of the following:

  • the employee's ability to perform the job,
  • the employee's diligence, skill, or reliability in carrying out his or her duties, or
  • any illegal or wrongful act committed by the employee that is related to the duties of his or her job.

The statute further establishes that the presumption of good faith may be rebutted only upon a showing of clear and convincing evidence that the information disclosed was knowingly false, deliberately misleading, or made with reckless disregard for the truth. This is a much higher standard than that required in most civil proceedings (more likely than not), but is the same standard already applied by the courts in these cases.

The statute also advises, but does not require, employers to maintain a written record of the identities of the persons or entities to which any of the aforementioned job-reference information is disclosed. Further, if such a written record is made, it is to be kept as part of the employee's personnel file (which the employee or former employee has a right to inspect) for a minimum of two years.

Despite the enactment of this statute, an employer may still be sued for releasing reference information and should exercise caution in providing references to prospective employers. This statute does not change the law enough to change our advice that generally employers should get a release from the employee or former employee before giving out information other than the dates of employment and the last position held by the employee.

NOTE: There are other existing statutes on job references and background checks that apply to specific employment categories, such as education and health care, that require background checks on or disclosure of certain information in specific situations. Covered employers must, of course, abide by those disclosure or background check obligations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.