HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
VI. Information Disclosure Issues
A.
Confidentiality of Personnel Records and Information
Idaho Code §§ 45-610, 72-1337 and IDAPA § 09.01.38.081 require
employment records including employee’s name, address, sex, occupation, Social
Security Number, place of work, date of hiring, rehiring, termination date; the hour
and day when the work week begins, the total hours worked each workday and
workweek, the total daily or weekly straight time earnings,; the regularly hourly pay
rate; the total overtime pay for each workweek; deductions from wages; total wages
paid each payday; and the date of wage payment and pay period covered; cash value
of other remuneration and its nature, and the amount of bonuses or special
commissions, to be maintained for a minimum period of three (3) years from the last
date of the employee’s service.
The right to examine personnel files is granted only to employees of public
educational institutions. They are to be provided with timely notice of materials
placed in their files and are to have the opportunity to rebut such materials. They
have the right to access their files upon request and may obtain copies of documents
except recommendation letters. Idaho Code § 33-518.
Idaho Code § 44-202 protects from disclosure communication from am
participant in employee assistance programs.
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM
With respect to verification and reference issues, please see Section C
hereinbelow. With respect to disclosure of public sector records, please see Section B
hereinbelow.
B.
Public Sector Records
The Office of the Attorney General has published the Idaho Public Records Law
Manual, detailing Idaho Code §§ 9-337-9-350. “Public records” are defined broadly
– including, but not limited to “any writing containing information relating to the
conduct or administration of the public’s business prepared, owned, used or retained
by any state agency, independent public body corporate and politic or local agency
regardless of physical form or characteristics”. Idaho Code § 9-337(13). The right to
inspect and receive a copy of public records at all reasonable times is absolute unless
the record is exempt from disclosure by law. Idaho Code § 9-338(1).
There is one standard for disclosure of personnel information for all public
employers: required disclosure of a current or former employee’s or public official’s
“employment history, classification, pay grade and step, longevity, gross salary and
salary history, status, workplace and employing agency”. Idaho Code § 9-340C(1).
The Legislature acknowledges there is some loss of privacy when one accepts a
position supported by public money. All other information in an employee’s or
applicant’s personnel file is not available to the public without the written consent of
the individual to whom the file pertains. Thus, information or a more personal nature
is not normally disclosed.
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM
All information in an employee’s file is accessible to the employee or a
designated representative, except for “material used to screen and test for
employment.” Idaho Code § 9-340C(1).
School district employees are treated differently from other public sector
employees.
C.
Lawful Employment Verification and References
In Idaho, it is unlawful for any employer to maintain a blacklist, or to notify any
other employer that any current or former employee has been blacklisted by such
employer, for the purpose of preventing such employee from receiving employment.
Idaho Code § 44-201(1).
An employer who in good faith provides information about the job
performance, professional conduct, or evaluation of a former or current employee to a
prospective employer of that employee, at the request for the prospective employer of
that employee, at the request of the current or former employee, may not be held
civilly liable for the disclosure or the consequences of providing the information.
Idaho Code § 44-201(2). There is a rebuttable presumption that an employer is acting
in good faith when the employer provides information about the job performance,
professional conduct, or evaluation of a former or current employee to a prospective
employer of that employee, at the request of the prospective employer of that
employee or at the request of the current or former employee. Id. The presumption
of good faith is rebuttable only upon a showing by clear and convincing evidence that
the employer disclosed the information with actual malice or with deliberate intent to
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM
mislead. Id. “Actual malice” means knowledge that the information was false or
given with reckless disregard of whether the information was false. Id.
Nonetheless, many employers utilize a “dates of employment, position title”
only policy in order to avoid defamation causes of action.
The most prudent approach is to establish and follow a company reference
policy and to direct all reference inquiries to a particular person or department. The
policy should clearly delineate what information will be provided and how the
information is accessed. In addition, a careful employer should obtain releases from
departing employees during their exit interview allowing the employer to provide
references upon request.
D.
Duty to Warn
Idaho has not addressed a previous employer’s duty to warn future employers of
an employee’s prior misconduct, negligence, poor performance, etc. However,
related issues are addressed in statutes for mandatory disclosure in circumstances
such as abuse and criminal behavior that are beyond the scope of this presentation.
E.
Defamation and Invasion of Privacy in Staff Discussions and Third
Party Disclosures
In the absence of the statute addressed in Section C, traditionally, the concern
had been that an employer would be sued for defamation as a result of providing a
reference. Idaho Code § 44-201(2) provides employers with a great deal of protection
by requiring employees to show by clear and convincing evidence either “actual
malice” or “deliberate intent to mislead”. This is a difficult burden of proof to carry
forward.
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM
Nonetheless, defamation cases are common in the employment context, both
with respect to third party disclosures in the context of references, other third party
disclosures and in in-house staff evaluations and discussions.
In order to establish a defamation cause of action, an employee must prove: (1)
that the defendant employer (and/or defendant employer’s employees other than
plaintiff employee) communicated information concerning the employee to others;
(2) that the information impugned the honesty, integrity, virtue or reputation of the
employee or exposed the employee to public hatred, contempt or ridicule; (3) that the
information was false; (4) that the defendant knew it was false, or reasonably should
have known that it was false; (5) that the plaintiff employee suffered actually injury
because of the defamation; and (6) the amount of damages suffered by plaintiff
employee. In Idaho, defamatory statements made about an individual are slanderous,
per se (actionable without proof of special damages) if the statements which impute
to the employee “a matter incompatible with his trade, business, profession or office”.
In certain circumstances, a defamatory statement may be deemed conditionally
privileged where the information, in the interest of a third person, protection of the
interest of the defendant or certain interests of the public, should be feely given,
where necessary to protect from liability those who, for the purpose of furthering a
common interest (such as a business relationship) give information which though in
fact untrue, defendant reasonably believe to be true and appropriate for the
furtherance of the interests. Such privilege is often narrowly construed and is lost if
abused, and the privilege will not afford protection from liability where the
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM
defamatory material is published with express malice (in bad faith or with reckless
disregard for the truth).
HIRING AND TERMINATING: The Ins and Outs of Employment Law
Boise, Idaho; Thursday, October 10, 2013
3/7/2016 11:07 PM