Kentucky References laws & HR compliance analysis

Kentucky References: What you need to know

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. This creates a quandary for employers.
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)).Therefore, employers should be diligent in conducting reference and background checks on new employees, particularly when the job involves contact with the public.
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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. § 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 ...

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