Answer: Although the answer depends on several factors, including employee workplace privacy rights, defamation, qualified privilege for employers, union activity protections and discrimination, state law is increasingly coming into play. States are addressing employer concerns and writing laws to provide protection for employers from liability when providing job references for current or former employees.
Specific laws vary, but these laws generally protect:
- former or current employers;
- who provide information about "job performance" (which may be defined by law to include work-related characteristics and abilities, reason for separation from employment, etc.);
- to prospective employers (sometimes limited to a request by the employee; a few states require the request to be in writing).
The laws generally provide a presumption that information provided in such circumstances is given in good faith and is immune from civil liability.
Legal protections can be lost, however, if there is a showing that:
- the information given was false;
- it was provided with knowledge of its falsity or recklessly or maliciously.
A minority of states also will not protect information given in violation of a nondisclosure agreement or otherwise confidential by law, or in violation of any civil right protected by that state’s laws.
Does your state provide immunity?The following states have job reference immunity statutes of general application:
Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Wisconsin, Wyoming
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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.