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 detailed discussion of 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.
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 in Georgia should consider taking precautionary measures when giving references, including:
• Insisting on a written authorization from the employee/former employee who will be ...