Reference checks are a useful way for employers to gather information about applicants that might not be discovered through the application and interview process. However, despite the usefulness of reference checking, many employers are legitimately concerned about lawsuits from former employees based on information provided in response to a request for a reference, and liability for the actions of employees where the company failed to conduct a thorough reference check. This creates a catch-22 for employers. There is additional information and a detailed discussion of these legal issues. .
To deal with employers' reluctance to provide information about former employees, a number of states have enacted laws “immunizing” employers against employee claims over such disclosures. The immunity laws generally provide protection from claims by former employees for defamation of character.
Hawaii is among the states that have enacted reference immunity laws. Under Hawaii law, employers and their authorized designees are presumed to be acting in good faith and are immune from civil liability when they make disclosures at the request of a current/former employee, or any prospective new employer, regarding factual information or opinion about the current or former employee's job performance (HI Rev. Stat. Sec. 663-1.95). The presumption of good faith can be rebutted only by showing that the employer intentionally disclosed information it knew was false or misleading.
Also, the Hawaii Supreme Court has refused to recognize a claim of defamation based on a former employee's need to communicate the reason for his or termination to a prospective employer (Gonsalves v. Nissan Motor Corp.,58 P.3d 1196 ...