Reference checks are a useful way for employers to gather information about applicants that they might not discover 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.
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.
Maine is among the states that have a reference immunity law. Under Maine law, an employer that discloses information about a former employee's job performance or work record to a prospective employer is presumed to be acting in good faith and is immune from civil liability (ME Rev. Stat. Tit. 26 Sec. 598). The presumption of good faith can only be rebutted by clearly showing that the employer knew that the disclosure was false or deliberately misleading and that the disclosure was made with malicious intent.
Practical advice. Even with a reference immunity law, employers in Maine should consider taking precautionary measures when giving references, including:
• Insisting on a written authorization from the employee/former employee who will be the subject of the reference or from the prospective new employer. The written authorization should be kept on file along with a copy of the reference or a written summary of the reference ...