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.
Virginia is among the states that have a reference immunity law. Under Virginia law, an employer is immune from liability for communicating information upon request from a current or former employee or prospective employer about a former employee's professional conduct, reasons for separation, or job performance, including information contained in any written performance evaluations. There is a presumption that an employer providing such a reference is acting in good faith (VA Code Sec. 8.01-46.1). However, the presumption can be rebutted and the employer found liable if shown by a preponderance of the evidence that the employer disclosed information that was:
• Knowingly false or deliberately misleading;
• Provided with reckless disregard for whether it was false or not; or
• Provided with the intent to deliberately mislead.