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 for defamation of character.
Louisiana is among the states that have enacted a reference immunity law. Louisiana employers are presumed to be acting in good faith when, upon request from a prospective employer or current or former employee, the employer provides information to the prospective employer about the current or former employee's job performance or reasons for separation. Information about job performance includes attendance, duties, knowledge, skills, promotions/demotions, evaluations, attitude, and awards/disciplinary actions (LA Rev. Stat. Sec. 23:291). Therefore, the employer is immune from liability for providing the information pursuant to this section unless it is shown by a preponderance of the evidence that the employer knowingly gave false or deliberately misleading information.
Although there is scant case law interpreting the reference immunity law, a U.S. District Court has issued a ruling favorable to employers (Livingston v. Gaviolo,