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.
To deal with employers' reluctance to provide information about former employees, a number of states have enacted laws “immunizing” employers against employee claims related to such disclosures. The immunity laws generally provide protection from claims for defamation of character.
Texas is among the states that have enacted a reference immunity law. Employers are presumed to be acting in good faith when, upon request from a prospective employer or current or former employee, the employer provides information to the prospective employer about the current or former employee's job performance (TX Labor Code Sec. 103.003). Therefore, the employer is immune from liability for providing the information pursuant to this section unless it is shown by clear and convincing evidence that the employer acted in bad faith because it knew the information was false at the time of disclosure or the disclosure was made with malice or reckless disregard for its truth.
The reference immunity law expressly provides that employers may not make a disclosure about a licensed practical nurse or licensed vocational nurse that relates to certain types of protected conduct enumerated in the statute. In ...