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 over such disclosures. The immunity laws generally provide protection from claims by former employees for defamation of character. Vermont does not currently have a reference immunity law.
Vermont had a limited and temporary reference immunity law that was automatically repealed on July 1, 2013, under a sunset provision. The law provided immunity to employers that in good faith provided information about a current or former employee's job performance to a prospective employer.
Practical advice. Employers in Vermont should consider taking precautionary measures when giving references, including:
• Insisting on a written authorization from the employee/former employee who will be the subject of the reference or from the prospective new employer. The written authorization should be kept on file along with a copy of the reference or a written summary of the reference if given orally.
• Confining remarks to an objective evaluation of job performance and job qualifications.
Employers may also want to consider ...