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An Idaho Employer’s Duties Regarding Former Employees

When an Idaho employer and employee part ways and officially end their working relationship, the employer still retains some duties to the employee. These duties most typically arise when the former employee attempts to seeks a letter of recommendation or a job reference from the former employer. Aside from the duties related to these communications, there are other similar duties the employer has that relate to the employer’s ability to prevent a former employee from obtaining another job.

Job References

After an employee leaves an employer, he often wants to use the prior job as a stepping stone for a future job. His experience and abilities at the former job will hopefully add value to the future employer, and the employee hopes that he can help the future employer understand this value. What better way than to have the potential employer get in contact with the former employer to discuss the employee’s job performance? In the ideal world, the past and prospective employer can freely and honestly discuss how great the employee was, how missed he is, and how great an asset he’ll be to the potential employer. Also, both will understand one another perfectly, and the potential employer will not suspect that the former employer was attempting to hide unfavorable information.

But what if the employee wasn’t an ideal employee? What if he was habitually late to work? What if he was grouchy, unkind, or otherwise a difficult employee to work with? What if he stole from the prior employer? Can the employer state these things? Or what if the prior employer declined to speak and the potential employer inferred the worst from this silence, even if the employee had been a great worker? What if the employee was a great employee but the employer is bitter he left and makes up damaging stories about the employee? Do any of these situations create liability for the prior employer? What legal duties does the employer have in these circumstances?

Idaho has a statute addressing employee duties which provides some helpful guidance on these questions, although it does not clearly answer them all. It seems to be Idaho’s effort to protect employers who only attempt to provide an honest evaluation of the prior employee. It states that if a former employee or prospective employee requests information about the former employee, the employer can in good faith provide information about the employee’s job performance and professional conduct—and give an evaluation of the employee—without incurring civil liability. In other words, the presumption in Idaho is that a former employer can’t be sued for being asked for an evaluation and then giving an honest evaluation. Employers can be transparent about their experiences with the employee.

This presumption that the prior employee is not liable for the consequences of an honest review is only overcome if the employer acts with “actual malice or with deliberate intent to mislead.” This Idaho statute explains that such actual malice “means knowledge that the information was false or given with reckless disregard of whether the information was false.” In other words, a prior employee is free to state the facts as he honestly perceives them, and he does not need to worry about the consequences the employee may face. For example, if the employee was habitually late to work, the prior employer can disclose this truth without the worry that such information will cause him liability if the prospective employer uses this information as a reason to decline extending a job offer.

On the other hand, if the employee wasn’t habitually late and the employer states as much, perhaps he could be liable to the prospective employee for the money he could have made at the future, unrealized job. However, we are only left with the text of the statute, which does not clearly state when a prior employer would be liable in Idaho for such lies, and there are no cases issued by the Idaho appellate courts that provide examples of real-life situations where an employer was sued in connection with this statute.

Blacklists

In addition to addressing how employers can respond to inquiries about prior employees, Idaho’s short law on employee duties also contains a related provision on blacklists. A blacklist, under a dictionary definition (there is no statutory definition), is simply “a list of persons under suspicion, disfavor, censure, etc.” Idaho prohibits employers from maintaining blacklists—indeed it makes it “unlawful” to do so—for the purpose of preventing such employee from receiving employment. So, not every truthful statement or act concerning a prior employee is lawful. For example, if an employee steals from an employer and is fired, the employee should not create a blacklist that could in any way prevent the employee from finding his next job opportunity. Again, there is no clear definition of a blacklist or any case law in Idaho fleshing this term out. But whatever a blacklist is, if the employee has placed a former or current employee on some type of naughty list, he should not disclose such a fact to any other party, especially if that party might be the former employee’s future boss.

Legal Assistance

If you are an Idaho employer who has been contacted either directly or indirectly by a former employee, and you aren’t sure how to respond, if at all, give us a call. We have an experienced team of Idaho Employment and Labor Law attorneys at Racine Olson who can help. They are well versed in Idaho and federal employment laws, and they can help you act appropriately with regard to your duties to your former employees. This team includes Lane Erickson, a partner at Racine Olson who enjoys the highest possible rating of “AV” by Martindale Hubbell and from AVVO and JUSTIA for his ethics and legal ability. It also includes Nolan Wittrock, who has high ratings from clients and peers on AVVO and JUSTIA and are experienced in all employment matters. They can be reached toll-free at 877-232-6101 or 208-232-6101. They provide free consultation. You can also contact one of them by e-mail at _racine@racinelaw.net.

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