Nebraska Law Gives Employers Limited Immunity for Job References

Employers in Nebraska can now give job references to former employees with some assurance that they can’t be held liable in court if they give out negative or misinformation.

Nebraska recently became the latest state to enact a law giving employers limited immunity for giving references to current or former employees. Under the bill, which was signed into law on April 10, employers may share the following information:

(i) dates and duration of employment;
(ii) pay rate and wage history on the date of receipt of written consent;
(iii) job description and duties;
(iv) the most recent written performance evaluation prepared prior to the date of the request and provided to the employee during the course of his or her employment;
(v) attendance information;
(vi) results of drug or alcohol tests administered within one year prior to the request;
(vii) threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;
(viii) whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and
(ix) whether the employee is eligible for rehire.

The statute creates a presumption of good faith on the part of the employer, and the presumption may only be overcome by “a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.”

The immunity will apply only if the employee provides written consent to release such information. The written consent remains valid for six months. The consent must be in a standalone document or as a conspicuous part of an employment application. The required language is as follows: “I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).”

The immunity does not apply if the employer is found to have discriminated or retaliated against the employee “because the employee has exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.”

Read more about the law’s probable impact.

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