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 checking references, 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.
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. Rhode Island is among the states that have reference immunity laws. Under Rhode Island law, employers are immune from liability if they provide fair and unbiased information about a current or former employee's job performance in response to a request from a prospective employer, or the current or former employee (RI Stat. Sec. 28-6.4-1(c)). For example, an employer was not liable for defamation when it told a prospective employer that it would not rehire a former employee because she had "unacceptable work habits." (Kevorkian v. Glass, 913 A.2d 1043 (R.I. 2007).)
However, the reference immunity law does not protect employers who act in bad faith when providing a reference. Bad faith can be established by showing the employer:
• Disclosed information that it knew to be false;
• Provided deliberately misleading information;
• Disclosed information with a malicious purpose; or
• Disclosed information that violated state or federal civil rights ...