New York References laws & HR compliance analysis

New York 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. New York, like many states, has recognized the tort of negligent hiring (Kenneth R. v. R.C. Diocese, 229 A.D.2d 159 (N.Y. App. Div. 1997)). 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. New York is one of a handful of states that have not enacted a reference immunity law. However, New York courts have ruled that a qualified privilege exists permitting an employer to give honest information about a former employee to a prospective employer (De Sapio v. Kohlmeyer, 52 A.D. 2d 780 (N.Y. App. Div. 1976)). Nonetheless, employers in New York should consider the following precautionary measure when providing references:
• Insisting on a written authorization from the employee/former employee who will be the ...

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