Providing employee references
Job performance reference checks
Washington state law (RCW 4.24.730) provides protection for an employer who responds to a prospective employer’s request for job performance reference information about a current or former employee. The law states that the employer providing the reference is presumed to be acting in good faith and is immune from civil and criminal liability so long as the disclosed information relates to:
- An employee’s ability to perform their job;
- The diligence, skill, or reliability with which an employee performs or performed their job; or,
- Any illegal or wrongful act an employee committed in relation to their job duties.
The presumption of good faith can only be effectively challenged if a current or former employee can show by clear and convincing evidence that information the employer disclosed was knowingly false, deliberately misleading, or made with reckless disregard for the truth.
An employing official may decline to respond to a work reference request for a current or former employee. However if reference information is provided, the law states that a manager who provides it should retain a written record in the employee’s personnel file of the identity of the person or entity to which reference information is disclosed for a minimum of two years from the date of disclosure. An employee or former employee has a right to inspect the written record upon request.
Guidelines and process for providing job performance references
- Only provide a job performance reference if you have direct knowledge of an employee. Generally, only a manager should speak on behalf of the University as an employer. (e.g., “Would you rehire this person?” could only be accurately answered by the person that would have rehire authority.)
- Restrict your comments to those aspects of the employee’s job performance about which you have specific knowledge. Do not guess or rely on hearsay to respond to reference questions.
- Avoid providing negative information about an employee’s job performance if you did not make the employee aware of the performance problem or behavioral concern. There are possible exceptions, e.g. you learn about a problem after the employee has left employment but have documentation that the problem did exist.
- Do not disclose medical information even if an employee voluntarily disclosed it to you.
- Do not provide information about an employee that is not directly work related.
- Prepare an entry into the Employee Work Reference Inquiry Documentation (PDF) and ensure that the form is retained in the employee’s departmental personnel file for a minimum of two years from the date of the disclosure.
- When UW employees are contacted to provide a job performance reference, the University is required to disclose any information regarding findings of sexual misconduct even if the requestor does not ask for that information. Departments must contact UW Human Resources (firstname.lastname@example.org) to meet this requirement.
Your unit’s Human Resources Consultant is available to discuss questions regarding the kind of information that should be provided during job performance reference checks.
Sexual misconduct disclosure to prospective employers
Effective July 1, 2021, under Washington state law, prior to an official offer of employment, all institutions of higher education in Washington state are required to request in writing that the applicant’s current or former higher education employers disclose whether the final candidate:
- Is the subject of any substantiated findings of sexual misconduct
- Is currently being investigated for sexual misconduct
- Has left a position during an investigation into a violation of any sexual misconduct policy
Under RCW 28B.112 “sexual misconduct, includes, but is not limited to, unwelcome sexual contact, unwelcome sexual advances, requests for sexual favors, other unwelcome verbal, nonverbal, electronic, or physical conduct of a sexual nature, sexual harassment, and any misconduct of a sexual nature that is in violation of the postsecondary educational institution’s policies or has been determined to constitute sex discrimination pursuant to state or federal law.”
Employer policies addressing sexual misconduct may include, but are not limited to, anti-harassment and discrimination policies, Title IX policies, and policies adopted in compliance with the Jeanne Clery Act (20 USC § 1092(f)). At UW, these include Executive Order 31: Nondiscrimination and Affirmative Action; Executive Order 51: Sexual Violence Elimination; and Executive Order 70: Compliance with Education Department Sexual Harassment Regulations.
If UW has information about substantiated findings of a current or former employee’s sexual misconduct in the employee’s personnel file or employment records, unless otherwise prohibited by law, the UW shall disclose that information to any employer conducting reference or background checks on the current or former employee for the purposes of potential employment, even if the employer conducting the reference or background check does not specifically ask for such information.
The law states that an employer disclosing the sexual misconduct is to be acting in good faith and is immune from civil and criminal liability for the disclosure and is not liable for any cause of action arising from nondisclosure of information by an employee without access to official personnel records who is asked to respond to a reference check.
When disclosing information under this section, the UW shall keep personal identifying information of the complainant and any witnesses confidential, unless the complainant or witnesses agree to disclosure of their identifying information.
UW Human Resources responds to all institutional requests for sexual misconduct disclosure for all current and former staff, academic personnel, and student employees. Higher education employers requesting information related to sexual misconduct may contact:
UW Human Resources Employee Relations
Email subject: Sexual misconduct disclosure, <Employee name>
Phone (206) 543-2354
Fax (206) 685-0636
UWHR will respond within five business days of receipt of the request for sexual misconduct disclosure.
Chapter 28B.112 RCW – Campus Sexual Violence