New Hampshire References laws & HR compliance analysis

New Hampshire References: What you need to know

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. 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. New Hampshire, like many states, has recognized the tort of negligent hiring (Richmond v. White Mountain Recreation Ass'n, 140 N.H. 755 (1996)). 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 for defamation of character. New Hampshire is not among the states that have enacted reference immunity laws. However, New Hampshire's state courts have consistently refused to hold employers liable for statements made in good faith that are directly related to job performance.
Practical advice. Employers in New Hampshire should consider taking precautionary measures when giving references, including:
• Insisting on a written authorization ...

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