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.
Employers may be reluctant to provide any negative information in a reference for fear that their former employee will file a defamation of character claim. On the other hand, in Mississippi, employers have a duty to exercise due care in hiring employees, and can be held liable for an employee's negligence if they knew or should have known of the employee's incompetence (Doe v. Pontotoc County School District, 957 So.2d 410 (Miss. Ct. App. 2007)). References can provide important information about a prospective employee's ability to perform a job. To deal with this conundrum, 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. Mississippi has not yet enacted a reference immunity law.
Practical advice. Employers in Mississippi should take precautionary measures when giving references including:
• Requiring a written authorization from the employee/former employee who will be the subject of the reference. The written authorization should be kept on file along with a copy of the reference or a written summary of the reference if given orally.
• Confining remarks to an objective evaluation of job performance and job qualifications.