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.
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. Minnesota is among the states that have enacted reference immunity laws (MN Stat. Sec. 181.967).
An employee or former employee may bring a lawsuit against an employer that has disclosed certain information to a prospective employer or an employment agency only if the employee or former employee can demonstrate by clear and convincing evidence that:
• The information was false and defamatory; and
• The employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.
The protection from being sued only applies to specific information given to prospective employers or employment agencies in response to a request for information. The information that may be disclosed includes:
• Dates of employment
• Compensation and wage history
• Job description and duties
• Training and education provided by the employer
• Acts of violence, theft, harassment ...