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 protections provided by these immunity laws are from claims for defamation of character--libel and slander. Kansas is among the states that have enacted reference immunity laws. Under Kansas law, employers are granted absolute and unconditional immunity for written or verbal disclosures of an employee's or former employee's:
• Job description and duties; and
Employers are also entitled to absolute immunity when they respond in writing to a written request from a prospective new employer by providing the following information about a current or former employee:
• Written employee evaluations conducted before the employee's separation from the employer (note that the employee must be given a copy of the evaluation on request); and
• Information regarding whether the employee was voluntarily or involuntarily released from service and the reasons for the separation (KS Stat. Sec. 44-119a).
All other disclosures to prospective employers are covered by “qualified immunity"; that is, they are presumed to be made in good faith, and no such disclosure may be made the basis for a lawsuit unless the employee shows that false statements were made with actual malice (Dominguez v. Davidson, 974 P.2d 112 (Kan. 1999)).
Employers in Kansas can therefore feel comfortable responding to reference requests provided that they follow the established guidelines. However, as a precautionary measure, employers who give references should insist on a written authorization ...