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. California is among the states that have enacted laws to protect employers when they provide references. 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 immunity laws generally provide protection from claims by former employees for defamation of character.
California is among the states that have enacted reference immunity laws. Under California law, truthful communications about job performance or employment qualifications of a current or former employee are privileged as long as the communication is based on credible evidence and made without malice (CA Civ. Code Sec. 47(c)). Privileged communication includes answering the question, “Would you rehire the employee?” The privilege does not apply to comments about an employee's protected speech or activity that is protected by federal and/or state law. Privileged communications cannot form the basis of a defamation claim (libel or slander) under California law.
Practical advice. Even with a reference immunity law, employers in California should consider taking ...