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. There is a detailed discussion of these legal issues.
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.
Georgia is among the states that have enacted reference immunity laws. Under Georgia law (GA Stat. Sec. 34-1-4), employers and their authorized designees are immune from liability when they, in good faith, make factual disclosures at the request of a current or former employee, or any prospective new employer, about:
• Any act of the employee which would be a violation of state law
• The employee's ability or inability to perform the job duties
There is a presumption that the employer is acting in good faith unless:
• Lack of good faith is shown by a preponderance of the evidence.
• Information was disclosed in violation of the provisions of a nondisclosure agreement.
• The employer provided information which is deemed confidential or privileged under federal, state, or local law.
Practical advice. Even with a reference immunity law, employers ...