Reference checks are a useful way for employers to gather information about applicants that might not be discovered 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 can create 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 protections provided by these immunity laws are from claims for defamation of character—libel and slander. Alaska is among the states that have enacted reference immunity laws. Under Alaska law, an employer is immune from liability for communicating information about the job performance of a current or former employee to a prospective employer at the request of the prospective employer or employee as long as the employer is acting in good faith (AK Stat. Sec. 09.65.160). There is a presumption that the disclosure is being made in good faith, which can only be rebutted by proving that the employer or former employer:
• Recklessly, knowingly, or with a malicious purpose disclosed false or deliberately misleading information; or
• Disclosed information that resulted in a violation of the employee's civil rights under state or federal law.
Employers in Alaska can therefore feel relatively free to give references as long as they:
• Insist on a written authorization from the employee or former ...