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 for defamation of character.
Wyoming is among the states that have enacted a reference immunity law. Under Wyoming law, an employer is immune from liability for communicating information about job performance to a current or prospective employer of the former employee as long as the employer is acting in good faith (WY Stat. Sec. 27-1-113). There is a legal presumption that the employer is making the disclosure in good faith that can only be rebutted by proving by a preponderance of the evidence that the employer provided information that was:
• Knowingly false or deliberately misleading
• Disclosed for a malicious purpose
Practical advice. Even with a reference immunity law, employers in Wyoming 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 ...