Employers generally use reference checks to verify or gather information about job applicants. Despite the usefulness of reference checks, employers that are asked to provide references may be legitimately concerned about defamation lawsuits by former employees if negative information is provided in response to a reference request. A discussion of these legal issues is available.
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 within 1 year before the request
• Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee
• Whether the employee was voluntarily or ...