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 in cases in which the company failed to conduct a thorough reference check. A detailed discussion of these legal issues is 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. The protections provided by these immunity laws are from claims for defamation of character—libel and slander. West Virginia is among the states that have enacted a reference immunity law (W. Va. Code Sec. 55-7-18a).
Employers in West Virginia are immune from civil liability for the good-faith disclosure of job-related information about a former or current employee. The employer's reference must be in writing, and a copy must be provided to the former or current employee. The presumption of good faith can be rebutted by showing that information disclosed was:
• Knowingly false;
• Disclosed with reckless disregard for the truth;
• Deliberately misleading;
• Rendered with malice toward the employee or former employee; or
• Disclosed in violation of a nondisclosure agreement or applicable law.
Job-related information. Under the law, "job-related information" includes information concerning a person's training, education, experience, qualifications, conduct, and job ...