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. This creates a catch-22 for employers. There is a detailed discussion of these legal issues available. ,
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. However, New York is one of a handful of states that have not enacted a reference immunity law. However, New York courts have ruled that a qualified privilege exists permitting an employer to give honest information about a former employee to a prospective employer (De Sapio v. Kohlmeyer, 52 A.D. 2d 780 (NY App. Div. 1976)). Nonetheless, employers in New York should consider the following precautionary measure when providing references:
• 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 documentation of the conversation if the reference is given orally).
• Confining remarks to an objective evaluation of job performance.
Employers may also want to consider using service letters in lieu of providing references for former employees. A ...