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 by former employees for defamation of character.
Under South Carolina law, an employer is immune from civil liability for the disclosure of an employee's or former employee's dates of employment, pay level, and wage history to a prospective employer (SC Stat. Sec. 41-1-65). In addition, the law grants immunity to employers for the written disclosure of certain job-related information upon written request from a prospective employer, if the employee in question is also permitted access to the same materials and information. The former employer is immune from legal action for any such disclosure unless the employee can show that the employer knowingly or recklessly provided false information. This protection extends to disclosures of the following:
• Written employee evaluations
• Official personnel notices that formally record the reasons for separation
• Whether the employee was voluntarily or involuntarily released from service and the ...