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 creates a catch-22 for employers. Additional information on 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. Arizona is among the states that have enacted reference immunity laws. Under Arizona law, employers are immune from civil liability when they in good faith make disclosures at the request of a prospective employer about the reason for termination or the job performance, professional conduct, or evaluation of a current or former employee. A copy of any written communication regarding employment must be sent by the employer to the former employee's last known address (AZ Rev. Stat. Sec. 23-1361).
There is a presumption that an employer is acting in good faith when making such disclosures:
• If the employer employs fewer than 100 employees, the employer only disclosed information about the reason for termination or the job performance, professional conduct, or evaluation of a current or former employee.
• If the employer employs 100 ...