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, when employers are asked for references, they may be legitimately concerned about defamation lawsuits from former employees based on negative information provided in response to a reference request. There is additional information and a detailed discussion of these legal issues.
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 for defamation of character.
Virginia is among the states that have a reference immunity law. Under Virginia law, an employer is immune from liability for communicating information upon request from a current or former employee or prospective employer about a former employee's professional conduct, reasons for separation, or job performance, including information contained in any written performance evaluations. There is a presumption that an employer providing such a reference is acting in good faith (VA Code Sec. 8.01-46.1). However, the presumption can be rebutted and the employer found liable if shown by a preponderance of the evidence that the employer disclosed information that was:
• Knowingly false or deliberately misleading;
• Provided with reckless disregard for whether it was false or not; or
• Provided with the intent to deliberately mislead.
The law defines "professional conduct" to include the ethical standards that govern the employee's profession or the lawful conduct the employer ...