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 discussion of these legal issues is available.
Kentucky recognizes a cause of action for negligent hiring and retention if it is shown that the employer knew or should have known that (1) the employee was unfit for the job, and (2) the employee's placement or retention in the job created an unreasonable risk of harm to a third party (Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (KY Ct. App. 1998)).
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.
Kentucky is among the states that have a reference immunity law (KY Rev. Stat. Sec. 411. 225). Under the law, an employer who provides information about the job performance, professional conduct, or evaluation of a current or former employee to a prospective employer, at the request of the employee or prospective employer, is immune from civil liability unless the employee proves that:
• The employer disclosed information knowing it was false, with reckless disregard for whether it was true of false, or with the intention to mislead the prospective employer.
• Disclosure of the information was an unlawful discriminatory act under the state law.
Practical advice. Even with a ...