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 on the basis of 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 for defamation of character. Washington is among the states with a reference immunity law.
Under Washington law, employers are presumed to be acting in good faith and immune from civil and criminal liability for the disclosure of requested information about a current or former employee, made at his or her specific request, to a prospective employer or employment agency, provided that the information disclosed relates to:
• The employee's ability to perform his or her job;
• The diligence, skill, or reliability of the employee in performing his or her job duties; or
• Any illegal or wrongful act committed by the employee that was related to his or her job performance.
Employers must still take care when providing references because the presumption of good faith may be rebutted if the employee can show that the employer disclosed information it knew was false or deliberately misleading, or that the disclosure was made with reckless ...