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. There is additional information and 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.
Idaho is among the states that have enacted reference immunity laws. Under Idaho law, an employer may not be held liable for providing information regarding a current or former employee's job performance, professional conduct, or evaluations if the information is provided in good faith at the request of the employee or a prospective new employer (ID Code Sec. 44-201(2)). Employers are presumed to be acting in good faith unless they provided the information with actual malice or with deliberate intent to mislead. “Actual malice” means that the disclosure was made with the knowledge that the information provided was false or with reckless disregard of whether the information was false.
Practical advice. Even with a reference immunity law, employers in Idaho should consider taking precautionary measures when ...