Reference checks are a useful way for employers to gather information about applicants that might not be discovered 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. There is additional information and a detailed discussion of these legal issues.
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.
Nevada is among the states that have enacted reference immunity laws (NV Rev. Stat. Sec. 41.755). Under Nevada law, employers and their authorized designees are immune from liability when they make disclosures at the request of an employee about the employee to a prospective employer regarding:
• Factual information about the employee's ability to perform the job or his/her job performance
• The employee's reliability, diligence, or skill in carrying out job duties
• The employee's commission of an illegal or wrongful act
The employer is not immune from civil liability if it makes such disclosure:
• With malice or ill will
• Knowing or believing the information was inaccurate
• Having no reason to believe the information was accurate
• In violation of a federal or state law
• In violation of a nondisclosure agreement