Employers generally use reference checks to verify or gather information about job applicants. Despite the usefulness of reference checks, employers that are asked to provide references may be legitimately concerned about defamation lawsuits by former employees if negative information is provided in response to a reference request. A 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
• Was information that is prohibited from disclosure by any contract, civil, common law, or statutory right of the current or former employee
Practical advice. Even with a reference immunity law, ...