Massachusetts References laws & HR compliance analysis

Massachusetts 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.
Employers are also concerned about liability for the actions of employees where the company failed to conduct a thorough reference check. Massachusetts, like many states, has recognized the tort of negligent hiring (Foster v. The Loft, Inc., 526 N.E.2d 1309 (Mass. App. Ct. 1988)). Employers may be liable for intentional or negligent acts of an employee if they knew or should have known of an employee's dangerous propensities. 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 of defamation of character.
Massachusetts has not yet enacted a reference immunity law. However, the state's courts have afforded some degree of protection to employers. For instance, disparaging comments about an employee's performance made by one company to another may be protected if the companies share a business relationship, and the statements are relevant to that relationship (Eastern Contractors, Inc. v. Earl R. Flansborough & ...

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