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.
Illinois is among the states that have reference immunity laws. Under Illinois law, current and former employers are immune from liability for, upon request by a prospective employer, providing any written or oral disclosure of information regarding an employee/former employee's job performance or work-related characteristics that it in good faith believes is truthful (IL Comp. Stat. Ch. 745 Sec. 46/1 et seq.). Such disclosures are presumed to be made in good faith. The presumption of good faith can only be rebutted by showing that in giving a reference the employer or former employer:
• Disclosed information knowing that it was false; or
• Made a disclosure that violated the employee's or former employee's civil rights.
Practical advice. Even with a reference immunity law, employers in Illinois should consider taking precautionary measures when giving references, including: