Builders and Contractors Exchange
Weekly Bulletin: 02 May 2005
Reference Checks - Avoiding Liability
By: Lisa Thatch
"Name, Rank, Serial Number" - that used to be the advice given to employers when asking about the proper response to Reference Checks. Questions always arise as to what can be said, what must be said, and what should not be said about former employees. A balance must be found between a prospective employer's obligation to investigate and a former employer's desire to avoid defamation, interference, or invasion of privacy lawsuits.
There is good news for Virginia employers, however. A few years ago, Virginia passed a law protecting employers who give job references concerning ex-employees, under certain circumstances. Virginia's Reference-Checking "Immunity" Statute, Va. Code §8.01-46.1, provides that an employer is immune from liability for providing information on a former employee to a prospective employer so long as certain conditions are met.
First, there must be a request from another employer. The reference-checking law only protects employers who give job references "upon request by a person's prospective or current employer." It does not cover unsolicited comments.
Next, the law covers only job-related information. An employer giving a reference may relay information about the ex-employee's "professional conduct, reasons for separation or job performance . . ." This includes facts and opinion concerning the employee's "ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions."
Also, an employer who acts in "bad faith" is not protected. An employer is presumed to be acting in good faith when giving a reference. However, if the ex-employee can prove that the employer giving the reference disclosed false information, knowing it was false or with reckless disregard for whether it was false or not, the ex-employee can show bad faith. Bad faith can also be shown if the employer acted "with the intent to deliberately mislead" the new employer. If bad faith is found, punitive damages are available to the ex-employee of up to $350,000.00.
There are steps; however, all employers can take to avoid potential problems when giving references:
- Get a release from employees before responding to a reference request.
- Designate an individual to handle incoming reference requests, and train them appropriately.
- Decide in advance what kind of information you want to release and be consistent. Negative reviews or comments should be based on objective, quantifiable, and supportable criteria.
- Follow a policy of not giving references on the phone; ask for a written request and respond in writing, providing a record of the exchange.
- Get legal advice if you have special circumstances, such as an employee who has a known record of workplace violence or it you want further advice on ways to minimize liability.
Questions?
If you have any questions about this article or any other related matters, please contact:
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.