Employer Reference Immunity Laws

Some states have enacted laws that enable employers to provide information or opinions about current or former employees’ job performance. Employers are presumed to be acting in good faith and have a qualified immunity from civil liability unless the opinion or information disclosed is proven to be knowingly false or deliberately misleading.

View laws in Hawaii and Louisiana

View pending laws in Kentucky, Massachusetts and Washington

State Laws

Division 4. Courts and Judicial Proceedings, Title 36. Civil Remedies and Defenses and Special Proceedings, Chapter 663. Tort Actions, Part I. Liability; Survival of Actions
§663-1.95 Employers' Job Reference Immunity
http://www.capitol.hawaii.gov/hrscurrent/Vol13_Ch0601-0675/HRS0663/HRS_0663-0001_0095.htm
(a) An employer that provides to a prospective employer information or opinion about a current or former employee's job performance is presumed to be acting in good faith and shall have a qualified immunity from civil liability for disclosing the information and for the consequences of the disclosure.
(b) The good faith presumption under subsection (a) shall be rebuttable upon a showing by a preponderance of the evidence that the information or opinion disclosed was:
                                              (1) Knowingly false; or 
                                              (2) Knowingly misleading.
(c) Nothing in this section shall affect rights, obligations, remedies, liabilities, or standards of proof under chapters 89, 92F, 368, and 378. [L 1998, c 182, §1]

Title 23. Labor and Worker’s Compensation, Part IV. Disclosure of Employment Information
§291. Disclosure of employment related information; presumptions; causes of action; definitions http://www.legis.state.la.us/tsrs/tsrs.asp?lawbody=RS&title=23§ion=291
A. Any employer that, upon request by a prospective employer or a current or former employee, provides accurate information about a current or former employee's job performance or reasons for separation shall be immune from civil liability and other consequences of such disclosure provided such employer is not acting in bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a preponderance of the evidence that the information disclosed was knowingly false and deliberately misleading.

B. Any prospective employer who reasonably relies on information pertaining to an employee's job performance or reasons for separation, disclosed by a former employer, shall be immune from civil liability including liability for negligent hiring, negligent retention, and other causes of action related to the hiring of said employee, based upon such reasonable reliance, unless further investigation, including but not limited to a criminal background check, is required by law.

C. As used in this Section, the following words and phrases shall have the meanings contained herein unless the context clearly requires otherwise:
(1) "Employer" means any person, firm, or corporation, including the state and its political subdivisions, and their agents, that has one or more employees, or individuals performing services under any contract of hire or service, expressed or implied, oral or written.
(2) "Employee" means any person, paid or unpaid, in the service of an employer.
(3) "Prospective employer" means any "employer", as defined herein, to which a prospective employee has made application, either oral or written, or forwarded a resume or other correspondence expressing an interest in employment.
(4) "Prospective employee" means any person who has made an application, either oral or written, or has sent a resume or other correspondence indicating an interest in employment.
(5) "Job performance" includes, but is not limited to, attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, and disciplinary actions. Acts 1995, No. 632,§ 1.

Pending Laws

HB 200 , An Act relating to civil actions.
http://www.lrc.state.ky.us/RECORD/03RS/HB200/bill.doc
Be it enacted by the General Assembly of the Commonwealth of Kentucky Section 1. A new section of KRS CHAPTER 411 is created to read as follows:
(1) An employer who provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of that employee or prospective employer, shall be immune from civil liability arising out of the disclosure unless the plaintiff in the civil action proves:
(a) That the employer disclosed the information knowing that it was false, with reckless disregard of whether it was true or false, or with intent to mislead the prospective employer; or
(b) That the disclosure of the information by the employer constitutes an unlawful discriminatory practice under KRS Chapter 344.
(2) This section does not create a new cause of action or substantive legal right against an employer.
(3) This section does not limit employer immunity from civil liability or defenses established in another section of the Kentucky Revised Statutes or available at common law.

SENATE, NO. 1072 , An Act Relative to Employer Reference Immunity Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
Chapter 233 of the General Laws, as appearing in the 2000 Official Edition, is hereby amended by inserting after section 83 the following section: Section 84. An employer or duly authorized agent of said employer who provides or otherwise discloses information about a former employee's job performance or work record to a prospective employer or duly authorized agent is presumed to be acting in good faith and, unless lack of good faith is demonstrated by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences. Clear and convincing evidence of lack of good faith shall be evidence that clearly shows the knowing disclosure, with malicious intent, of false or deliberately misleading information.

HOUSE BILL 1305, An act relating to information provided by former or current employers to prospective employers; adding a new section to chapter 4.24 RCW; and creating a new section.
http://www.leg.wa.gov/pub/billinfo/2003-04/House/1300-1324/1305_02072003.txt
State of Washington, 58th Legislature, 2003 Regular Session
By Representatives Carrell, Nixon, Talcott, Kristiansen, Bush, Holmquist, Crouse, Miloscia, Hinkle, Schoesler and Anderson. Read first time 01/22/2003. Referred to Committee on Judiciary.

Be it enacted by the legislature of the state of Washington:

{+ NEW SECTION. +} Sec. 1. The legislature finds that employers are becoming increasingly discouraged from disclosing job reference information. The legislature further finds that full disclosure of such information will increase productivity, enhance the safety of the workplace, and provide greater opportunities to disadvantaged groups who may not have the educational background or resumes of other workers.

{+ NEW SECTION. +} Sec. 2. A new section is added to chapter 4.24 RCW to read as follows:
An employer who discloses information about a former or current employee's job performance, conduct, or other work-related information to a prospective employer, or employment agency as defined by RCW 49.60.040, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false or deliberately misleading.