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. A detailed 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.
Pennsylvania has a reference immunity law that provides employers with immunity from civil liability for the good-faith disclosure of information about a current or former employee's job performance to a prospective employer. The law provides that an employer is presumed to be acting in good faith in disclosing information about a worker's job performance (PA Stat. Tit. 42 Sec. 8340.1).
In order to rebut the presumption of good faith, an employee would have to show by clear and convincing evidence that the employer disclosed information that:
• The employer knew was false or in the exercise of due diligence should have known was false
• The employer knew was materially misleading
• Was false and was disclosed with reckless disregard as to the truth or falsity of the information with reckless disregard to its truth or falsity