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.
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.
Michigan has a reference immunity law. Under Michigan law, employers are immune from liability if they, in good faith, provide information from the employee's personnel file in response to a request from the current or former employee or the prospective new employer (MI Stat. Sec. 423.451 et seq. ). An employer is presumed to be acting in good faith in making such a disclosure unless the employee can prove that the employer:
• Disclosed information the employer knew to be false or misleading,
• Disclosed information with a reckless disregard for its truth, or
• Made a disclosure prohibited by state or federal laws.
Note: Michigan's reference immunity law defines "employee" to include volunteers, as well as those who are compensated for their work.
Practical advice. Even with a reference immunity law, employers in Michigan should consider taking precautionary measures when giving references, including:
• Insisting on a written authorization from the employee/former employee who will be the subject of the reference or from ...