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 on the basis of 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. There is a detailed discussion of these legal issues.
Employers are often reluctant to provide negative information about a former employer in a reference for fear of a defamation claim. Employers also worry about negligent hiring claims if they fail to adequately check an employee's background and references. To deal with this conundrum, 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.
Arkansas has a reference immunity law. Under Arkansas law, a current or former employer is presumed to be acting in good faith and is, as a result, immune from liability for the consequences of disclosing, with the written consent from the current or former employee, the following information about the employee's employment history to a prospective employer (AR Stat. Sec. 11-3-204):
• Date and duration of employment
• Current pay rate and wage history
• Job description and duties
• The last written performance evaluation prepared before the date of the request
• Results of drug or alcohol tests administered ...