DICK BAGGETT: Know Texas law on immunity for employers on reference checks

There are two sets of what are called FEPAs (Fair Employment Practice Acts) in the U.S. Most employers are "somewhat" aware of the federal (what I would call universal) employment laws and civil rights acts.

However, few employers have ever looked up the state of Texas FEPAs to see what the state law says. You see, in addition to the federal laws about employment generally, every state in the U.S. has its own set of rules.

The state laws can be the same as the federal laws or more intense than the federal laws. They can't be in contradiction to the federal laws.

For Texas employers, the best place to find the various state FEPAs is to go on the website of the Texas Workforce Commission. For a few weeks, we will be discussing what information is on the website for Texas employers regarding background checks and the application process.

One thing you will learn is that in 1999, the state Legislature passed an employment background law called H.B. 341. The bill can be located in the statutes found in Sections 103.001-103.005.

The purpose of H.B. 341 was to codify in the state law protections for employers and employees (applicants and former employees) in the giving and getting of reference checks. It therefore deals with job references and the issue of defamation. It just happens that this author was one of four people in Texas who wrote H.B. 341.

The purpose of the act states: "The legislature finds that the disclosure by an employer of truthful information regarding a current or former employee protects employment relationships and benefits the public welfare. It is the intent of the legislature that an employer who makes a disclosure based on information obtained by the employer that any employer would reasonably believe to be true should be immune from civil liability for that disclosure."

Particularly important in H.B. 341 was the section that defined "job performance." Job performance in the law "means the manner in which an employee performs a position of employment and includes an analysis of the employee's attendance at work, attitudes, effort, knowledge, behaviors, and skills." That's a pretty broad category of information.

The law provides for civil liability immunity for background checks. Specifically H.B. 341 states: "An employer who discloses information about a current or former employee under Section 103.003 is immune from civil liability for that disclosure or any damages proximately caused by that disclosure unless it is proven by clear and convincing evidence that the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed. For purposes of this subsection, ‘known' means actual knowledge based on information relating to the employee, including any information maintained in a file by the employer on that employee."

Therefore, within the Texas court system when a managerial employee or another representative of the employer "who is authorized to provide and who provides information in accordance with this chapter in the same manner that it applies to an employer" gets and gives background job performance references, they have civil immunity from liability. It's important to remember that this immunity applies only to the truth.

Next time we will look at ways to use H.B. 341 practically to obtain references about job performance.

This column was written by Dick Baggett, SPHR, CEBS, of RGB Human Resource Solutions LLC. Questions about the column or recommendations for future topics can be sent to Dick Baggett at dbaggett@wcc.net.

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