references

valentine

When you receive references on an employee, should they be kept in the general personnel file (e.g. with the application) or would you put them in a separate area as is done with medical information? I am a little confused because sometimes when I get a reference I am asked to keep it strictly confidential; however, an employee has a right to see his file and shouldn't he be allowed also to look at references that were given since he gave the names to you?

Susan Fentin MA

Did you send a release to the references before they responded? We recommend that our clients have a release on their reference checks that releases you and them from any liability for anything that they might say. Most companies require such a release before releasing anything more than name dates and title. If you have a release, it doesn't matter where you file them. If you don't have a release and you're concerned that you were given information that is supposed to be kept confidential, you can put them in a sealed envelope and mark them confidential, but you're right, employees in Massachusetts will have access to all information that was used to make an employment decision about them, so they would be able to see those references if they asked for a copy of their personnel file. However, if you decided to hire a person, his/her references could not have been too bad, so it may not matter. And the liability would be to the other company, not yours: Whatever decision you made, you made based on what you believed in good faith was the truth. If you have any additional questions, please let me know.
Susan Fentin
Associate Editor
Massachusetts Employment Law Letter
[email]sfentin@skoler-abbott.com[/email]

valentine

thank you for your reply, that's what I thought but I wanted to be sure because MA is many times different than other states. Yes, we do have a release on our forms.