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.
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 for defamation of character.
Oregon is among the states that have a reference immunity law. Under Oregon law, an employer is immune from liability for communicating information in response to a request from a former employee, or prospective employer, about the former employee's job performance as long as the employer is acting in good faith (OR Rev. Stat. Sec. 30.178). There is a legal presumption that the employer acted in good faith unless it is shown by a preponderance of the evidence that the information disclosed:
• Was knowingly false or deliberately misleading;
• Was provided for a malicious purpose; or
• Violated the employee's civil rights.
Practical advice. Even with a reference immunity law, employers in Oregon 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 ...