Check 4 state limits before you answer a reference call

Check Florida, Minnesota, Washington, and Ohio limits before you answer a reference call about a former or current worker.

Key takeaways for what you may say when another employer asks about a former worker

• Florida’s immunity rule applies when you disclose information to a prospective employer upon their request, but the protection is lost if clear and convincing evidence shows the information was knowingly false, according to Florida Senate.
• Minnesota’s statute prevents an employee from suing over specific disclosures to a prospective employer unless the employee demonstrates by clear and convincing evidence that the disclosure meets the conditions listed in the statute, according to Minnesota Revisor of Statutes.
• Washington’s law presumes you are acting in good faith and applies immunity from civil and criminal liability only when a prospective employer or employment agency specifically requests information on ability to perform the job, diligence, skill, or reliability, or an illegal or wrongful act related to job duties, according to Washington State Legislature.
• Ohio’s code states you are not liable in damages for disclosing job performance information requested by a prospective employer unless the plaintiff establishes specific grounds, according to Ohio Legislative Service Commission.
• Write down the caller’s name and the worker’s state immediately to identify which of these four rules applies before you speak.

Answer only inside the limits that state's page states, and keep a record of who asked

The four state pages each set a boundary on what you may say and what happens if you cross it. Florida’s statute states that an employer who discloses information about a former or current employee to a prospective employer upon request is immune from civil liability for such disclosure or its consequences, unless it is shown by clear and convincing evidence that the information disclosed was knowingly false or violated any civil right of the employee protected under chapter 760, according to Florida Senate. Washington’s page presumes an employer acts in good faith and is immune from civil and criminal liability for disclosures made at the specific request of a prospective employer or employment agency, provided the information relates to the employee’s ability to perform the job, their diligence, skill, or reliability, or any illegal or wrongful act committed when related to job duties, according to Washington State Legislature. Ohio’s code states that an employer who discloses requested information pertaining to job performance to a prospective employer is not liable in damages in a civil action to the employee, the prospective employer, or any other person for harm sustained as a proximate result of the disclosure, unless the plaintiff establishes specific conditions, according to Ohio Legislative Service Commission. These rules define the outer limits of your protection; they do not guarantee you will never face a claim.

What each page says you may disclose

Four state pages define the boundary of what you may say when another employer calls about a worker. Each page names the specific information covered and the condition that triggers the protection.

Florida’s page states that an employer who discloses information about a former or current employee to a prospective employer upon request is immune from civil liability for such disclosure or its consequences, according to Florida Senate. The page specifies that this immunity applies unless it is shown by clear and convincing evidence that the information disclosed was knowingly false or violated any civil right of the former or current employee protected under chapter 760, according to Florida Senate. The scope of this rule is limited to disclosures made to a prospective employer of the former or current employee, according to Florida Senate.

Minnesota’s page states that no action may be maintained against an employer by an employee or former employee for the disclosure of information listed in subdivisions 3 to 5 about the employee to a prospective employer or employment agency, according to Minnesota Revisor of Statutes. The page defines the condition under which a lawsuit can proceed by stating that the employee or former employee must demonstrate by clear and convincing evidence that the information was false and defamatory, according to Minnesota Revisor of Statutes. Additionally, the page requires that the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee, according to Minnesota Revisor of Statutes.

Washington’s page states that an employer who discloses information about a former or current employee to a prospective employer or employment agency at the specific request of that individual employer or employment agency is presumed to be acting in good faith, according to Washington State Legislature. The page specifies that the employer is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to the employee's ability to perform his or her job, according to Washington State Legislature. The page also includes information regarding the diligence, skill, or reliability with which the employee carried out the duties of his or her job, according to Washington State Legislature. Furthermore, the page covers any illegal or wrongful act committed by the employee when related to the duties of his or her job, according to Washington State Legislature.

Filled reference table of four reference-disclosure rules

The following table summarizes the specific limits and proof requirements found in the four state pages. Each row cites the publisher and the exact rule stated in that source.

Review each row against the worker's state before you speak.

Before the offer, also read Salary history questions: 3 state rules to check.

What the worker must prove before the protection falls away

The protection each state page offers an employer does not remain absolute if the worker can demonstrate specific wrongdoing. The evidentiary standard varies by jurisdiction, and the burden of proof rests on the party seeking to overcome the shield. Understanding these thresholds helps you anticipate how a dispute might unfold if a former worker challenges a disclosure.

In Washington, the law establishes a presumption of good faith for employer disclosures. This presumption may only be rebutted upon a showing by clear and convincing evidence that the information disclosed was knowingly false, deliberately misleading, or made with reckless disregard for the truth, according to Washington State Legislature. This is a high bar for the worker to clear.

Ohio sets a different threshold. Under Section 4113.71, a worker may overcome the employer's protection by proving, by a preponderance of the evidence, that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose, according to Ohio Legislative Service Commission.

Ohio’s statute also provides a second pathway for a worker to challenge a disclosure. The protection falls away if the worker proves, by a preponderance of the evidence, that the disclosure of particular information by the employer constitutes an unlawful discriminatory practice described in sections 4112.02, 4112.021, or 4112.022 of the Revised Code, according to Ohio Legislative Service Commission.

The written record Washington's page tells you to keep for two years

Washington State Legislature’s page for RCW 4.24.730 instructs employers to retain a written record of the identity of the person or entity to which information is disclosed under that section for a minimum of two years from the date of disclosure, according to Washington State Legislature. This requirement applies specifically to disclosures made under that section and sets a clear retention floor rather than a maximum.

When you make a reference disclosure in Washington, write down the name of the caller or the entity that received the information. Date the entry. Pair that identity note with the approach in Hiring Decision Debrief: Notes to a Recorded Decision. Store it where you can retrieve it if a question arises later.

Minnesota’s separate rule for disclosures under clause (5) of Sec. 181.967 requires that the disclosure be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address, according to Minnesota Revisor of Statutes. That mailing obligation is distinct from Washington’s retention instruction and applies only to Minnesota disclosures under that clause.

For your own records, treat the two-year Washington retention period as a minimum. If you also handle Minnesota workers, keep the mailed copy or proof of mailing alongside the disclosure log. Do not assume one state’s record-keeping rule covers another. Each page sets its own boundary, and the identity you record must match the person or entity who actually received the information.

What to note on the reference call

The caller name field helps you identify who requested the information. Florida’s statute applies when the disclosure is made upon the request of the prospective employer or of the former or current employee, according to Florida Senate. Washington’s rule applies when the disclosure is made at the specific request of that individual employer or employment agency, according to Washington State Legislature. Ohio’s rule applies when the employer is requested by an employee or a prospective employer to disclose information, according to Ohio Legislative Service Commission.

The worker's state field determines which statutory limit applies to your answer. Each state page sets its own boundary for what you may say.

The record kept (Y/N) field tracks whether you documented the interaction. Washington’s page instructs you to keep a record of who received the information, according to Washington State Legislature.

Illustrative example of a reference call

A caller asks about one former worker. You write the caller’s name and the worker’s state, then answer only inside that page’s limit. If Washington’s page applies, keep a written record of who received the information for 2 years. If Minnesota’s clause (5) applies, put the disclosure in writing and send a copy by regular mail to the last known address the same day.

Do this before the next reference call

Today, write the caller’s name and the worker’s state, confirm the disclosure was requested, and read that state’s page before you say anything about the worker.

Reference call FAQ

What proof does Minnesota's page require before a disclosure lawsuit can proceed?

According to Minnesota Revisor of Statutes, no action may be maintained against an employer for disclosing specific information to a prospective employer unless the employee demonstrates by clear and convincing evidence that the information was false and defamatory. The page further requires proof that the employer knew or should have known the information was false and acted with malicious intent. This evidentiary standard applies specifically to disclosures made under the conditions listed in the statute.

How long does Washington's page say to keep the record of who received the information?

The Washington State Legislature advises employers to retain a written record of the identity of the person or entity to which information is disclosed for a minimum of two years from the date of disclosure Washington State Legislature. This retention period begins on the day the information is shared with the prospective employer. Keeping this record helps document compliance with the disclosure requirements outlined in the statute.

Does Ohio's page create a new right to sue the employer?

No, the Ohio Legislative Service Commission states that the section does not create a new cause of action or substantive legal right against an employer Ohio Legislative Service Commission. The provision addresses liability for disclosures made in response to requests from employees or prospective employers. It clarifies the legal boundaries for civil actions related to job performance information but does not establish new legal claims.

Does Florida's page protect a disclosure the employer knew was false?

Immunity does not apply if it is shown by clear and convincing evidence that the information disclosed was knowingly false Florida Senate. The Florida Senate notes that immunity also fails if the disclosure violated any civil right of the employee protected under chapter 760.

What kinds of misconduct does Minnesota's page name for a disclosure?

According to Minnesota Revisor of Statutes, the statute names acts of violence, theft, harassment, or illegal conduct documented in the personnel record. These disclosures are permissible if they resulted in disciplinary action or resignation. The page also includes the employee's written response, if any, contained in the personnel record as part of the disclosable information.