On June 16, 1996, Illinois Governor James Edgar signed into law the Employment Record Disclosure Act. This Act, co-sponsored by MCHMJ&A attorney, Representative Rick Winkel, is designed to protect employers in providing truthful references. Many Illinois employers have become hesitant over the last several years to supply any meaningful form of reference regarding former employees. This is due, at least in part, to the trend of employees to sue their employers and former employers for almost any perceived wrong. As everyone is well aware, the past 10 years have produced the Americans with Disabilities Act, the Civil Rights Act of 1991 and the Family and Medical Leave Act, not to mention Anita Hill and Clarence Thomas as well as a variety of new state tort claims and laws governing the employment relationship. In all honesty, many of MCHMJ&A’s employer clients are afraid to provide honest and forthright references when asked by potential employers for fear of litigation. As a result, the Illinois legislature has passed and the Governor has signed the Employment Record Disclosure Act.
The Act provides that an employer which: provides truthful written or verbal information or information that it believes in good faith is truthful, about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for disclosure and the consequences of disclosure.
The Act actually codifies Illinois common law which provides an employer protection for libel, slander or defamation in providing a reference that the employer has a good faith reason to believe. Harrel v. Dillards Department Stores, 205 Ill. Dec. 892, 644 N.E. 2d 448(5th Dist.1994) It should be of comfort to Illinois employers that the government has recognized statutorily this common law privilege. However, the Act does not provide an absolute privilege in the reference check context, so employers must continue to be careful in providing references. For example, the Act allows the employer to provide information that it believes in good faith is truthful regarding an employee’s job performance. However, “job performance” is not defined in the Act. There are a variety of contexts in which an employer may provide information regarding an employee that arguably are not related to their job performance, but are still of interest to a subsequent employer. For example, Fun Foods had a former employee who regularly took a “three martini lunch.” Because this employee’s work never seemed to be effected by this habit, she was never disciplined and left Fun Foods of her own volition. The Human Resource Manager from Entertaining Eats contacted the her supervisor at Fun Foods for a typical reference check. What can Fun Foods say and enjoy the protection of the Act? There is certainly an argument that since this employee’s liquid lunches did not effect her ability to perform her job, any comments regarding this would be outside the protection offered in the Act. However, Entertaining Eats may well face a negligent hiring claim if this particular employee is involved in an accident while working as a result of her intoxication.
In addition, the Act protects employers from civil liability but does not go so far as to protect an employer from litigation. In other words, as with so many situations, an employer could still be sued by a former employee and incur substantial defense costs in demonstrating his statements were made in good faith.
While the purpose of the Act was to open the lines of communication between former and potential employers to minimize tort claims for negligent retention and negligent hiring, in my opinion, the Act did not go quite far enough. While it is certainly a step in the right direction, there are still concerns regarding the potential for litigation and the issue of what facts relate to an employee’s “job performance.” Still, employers in Illinois are gaining the attention of our legislature and efforts should be made to continue to push for protection through the political process.