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 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.
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.
Delaware is among the states that have reference immunity laws. Under Delaware law, employers are immune from liability for the good-faith disclosure of information about a current or former employee's job performance to a prospective employer (DE Code Tit. 19 Sec. 709). For purposes of the statute, "information" includes disclosures about the employee's job performance; work-related characteristics; violations of federal, state, or local law by the employee; or the employee's ability or lack of ability to accomplish the duties and meet the standards for his or her position.
There is a presumption that the disclosure of information pursuant to the reference immunity law was made in good faith unless the employee or former employee can establish that the employer:
• Disclosed information knowing that it was false or deliberately misleading
• Disclosed information with a malicious purpose
• Disclosed information in violation of a nondisclosure agreement or otherwise required to be confidential under state or federal law