EMPLOYMENT BACKGROUND CHECKS

Overview Of Employment Background Check Laws Regarding Giving Employment References

Some states have recognized that without affording some protection to employers the threat of lawsuits produces a chilling effect on employers who are asked for references on former employees. Without some protection, employers are placed in an impossible position of not being able to identify potentially problematic employees when asked by prospective employers for a reference.

Therefore, a number of states have enacted “shield” laws to encourage the exchange of truthful and accurate information when providing references on previous employees.

Many employer provide the minimum information in a job reference in what is called a “standard” reference to confirm job titles and dates.

They will not give specific information in such matters as sexual harassment, threats, stalking or other criminal actions to prospective employers who would benefit greatly from this information. After all, one of the main reasons to do background and reference checks is to protect a businesses’s employees from precisely such conduct.

However,  now,  employers are being sued under the laws of the negligent referral doctrine. This legal theory holds an employer accountable for not revealing crucial information on reference inquiries.

This is clearly illustrated by the Florida case of Firemen’s Fund Insurance Co. v. Allstate Insurance Co. In this case, the former Allstate employee, Paul Calden shot three employees at the Firemen’s Fund Insurance Co.  He then killed himself.

The Relatives of those killed sued Allstate, the former employer, for giving only the minimum Fireman’s Fund’s standard job reference on him. 

Investigation revealed that Calden had been fired from Allstate for carrying a gun to work. He wrote the word “blood” next to the names of his co-workers and also believed he was an alien

The decedent’s families asserted in their negligent referral lawsuit that as a previous employer, Allstate had breached it’s duty to disclose the former employee’s problems in the course of Fireman’s Fund’s job reference inquiry.

Employers are put between a rock and a hard place

Fortunately, some state legislators see this dilemna.

In this light, some twenty-six states have now enacted legislation that may shield employers somewhat from potential legal action in connection with providing information on previous employees to a prospective employer. the employer must be acting in good faith of course and the information must be accurate.

Employer shield laws: The following is quick reference to each state’s law regarding giving references on former employees.

This page is a summary of state laws only as of 10/2008. Please check with your legal counsel to make sure you are using the most up to date legal information.

Never disclose or discuss medical records nor any other information that may violate the employees civil rights
The requestor must be the prospective employer or believed in good faith to be a representative of the prospective employer

To avoid trouble but help provide prospective employers with accurate and truthful information

Only one person in your company should be authorized to provide job references.

All disclosures should be made is writing, and only upon written request with written permission from the prior employee.
Stick to the facts, do not embellish, provide opinion or non-factual statements.

Be truthful.

Document all information about your employee’s job performance as it occurs, and use that specific documentation as the basis for your reference.

Related Employment reference Legislation by State

Alaska
If reference is presented in good faith, the employer is not liable for the disclosure regarding job references, provided they are not reckless, malicious, false or deliberately misleading. (Alaska Stat §09.65.160)

Arizona
If reference is presented in good faith, the employer is not liable for the disclosure regarding job references provided information regarding job performance, professional conducts, evaluation or reason for termination is provided in good faith.

Good faith is presumed if the employer employs less than 100 employees, or, employs at least 100 employees and has a regular practice of providing such information. (Ariz Rev. Stat. §12-1361)

Arkansas

On receipt of written consent from a current or former employee, an employer may disclose to a prospective employer the following information: date and duration of employment; current pay rate and wage history; job description and duties; last written performance evaluation prepared prior to the date of request; threats of violence, harassing acts, or threatening behavior related to the workplace; nature of and reasons for separation from employment; and whether the employee is eligible for rehire.

The employer is presumed to have acted in good faith and is immune from liability for the disclosure and any resultant consequences unless it is shown that the information disclosed was false and the employer had knowledge of the falsity or acted with malice or reckless disregard. (See Ark. Code Ann. §11-3-204.)

California
Communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.

This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. (Cal. Civil Code §47)

Colorado
On request of a current or former employee or a prospective employer, an employer providing job history or job-performance information to a prospective employer is immune from civil liability for the disclosure.

Job performance is separately defined to include suitability of the employee for reemployment; work related skills, abilities, and habits; and the reason for separation.

The immunity is removed when false and when the employer knew or reasonably should have known that the information was false. (See Colo. Rev. Stat. §8-2-114.)

Delaware
Employer is immune from civil liability when providing job performance information, work related characteristics, violations of law and work evaluations, unless the information disclosed is shown to be knowingly false, misleading or malicious. (Del. Code 19 §709)

Florida
An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee. (FL Stat. §768.095)

Georgia
Employers have a qualified privilege to disclose factual information on job performance or abilities of employee or former employee, made at request of employee or a prospective employer, including disclosures involving violations of law. Employers are presumed to be acting in good faith when disclosing factual information concerning job performance, ability or violations of law. (GA. Code §34-1-4)

Hawaii
Employer is entitled to immunity if acting in good faith as long as the information provided was not knowingly false or misleading. (HAW stat. §663-1-95)

Idaho
An employer who in good faith 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 the prospective employer of that employee, or at the request of the current or former employee, may not be held civilly liable for the disclosure or the consequences of providing the information, so long as he was acting in good faith, and the employer did not act with reckless disregard of the falsity of the information with intent to mislead. (IDAHO §44-201)

Illinois
Employer is immune from civil liability for providing work related information regarding former employee if requested by former employee or potential employee and was made in good faith without being knowingly false or misleading, nor violating employee civil rights. ILL State. (§46/10)

Iowa
Employer is immune from civil liability for providing work-related information about a current or former employee to a prospective employer on request by a person who is believed in good faith to be a representative of the prospective employer or on request or authorization of the current or former employee.

Unless such work-related information provided by an employer violates the civil rights of the current or former employee, is knowingly provided to a person with no legitimate interest in the information, is not relevant to the inquiry, or is provided with malice or no good-faith belief that the information is true. (Iowa Code §91B.2.)

Kansas
An employer is immune from civil liability for disclosure of information about a current or former employee to a prospective employer. An employer enjoys immunity for disclosure of date of employment, pay level, job description and duties, and wage history information.

Any employer responding to a written request from a prospective employer also enjoys absolute immunity for the disclosure of written employee evaluations conducted prior to separation and the reasons for separation and whether separation was voluntary or involuntary. (Kan. Stat. Ann. §44-119a.)

Louisiana
An employer is immune from civil liability and other consequences for providing accurate information about the current or former employee’s job performance and reasons for separation. Job performance is defined to include attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, and disciplinary actions. If such disclosure is made in bad faith—the evidence showing knowledge of its falsity or a purpose to deliberately mislead—the immunity is lost. (La. Rev. Stat. Ann. §23:291)

Maine
An employer disclosing information about a former employee’s job performance or work record to a prospective employer is presumed to be acting in good faith, unless disclosure was made with malicious intent, of false or deliberately misleading information, the employer is immune from civil liability for the disclosure and its consequences. (Me.26, §598)

Maryland
An employer acting in good faith is not liable for disclosing information about a former employee’s job performance or work record to a prospective employer and is presumed to be acting in good faith, unless disclosure was made with malicious intent, of false or deliberately misleading information, the employer is immune from civil liability for the disclosure and its consequences (MD Code Proc. §5-423)

Michigan
A previous employer is free to provide any non-confidential information about a previous employee, so long as it’s true and isn’t provided to maliciously harm the employee. An employer who provides false information that disparages the employee may be liable for defamation.

In order to avoid potential liability, many employers often refuse to comment on a past employee’s job performance and confirm only dates of hire and separation, plus wage or salary information. (MI Law §453.452)

Missouri
An employer may: respond in writing to a written request concerning a current or former employee from an entity or person which the employer reasonably believes to be a prospective employer of such employee; and disclose the nature and character of service rendered by such employee to such employer and the duration thereof; and truly state for what cause, if any, such employee was discharged or voluntarily quit such service.

The employer shall send a copy of any letter provided to the current employee or former employee at the employee’s last known address.

The current or former employee may request from the employer a copy of the letter provided pursuant to this section for up to one year following the date of such letter.

For purposes of this section, an employer shall be immune from civil liability for any response made pursuant to this section or for any consequences of such response, unless such response was false and made with knowledge that it was false or with reckless disregard for whether such response was true or false.

Montana
An employer may disclose information about a former employee at the request of the employee or prospective employer is not liable for damages arising out of disclosure unless disclosure is false and made knowingly or negligently. (Mont. Code §27-1-737)

Nevada
At the request of the employee, an employer may disclose information regarding the employee’s job related skill, reliability, ability, or illegal or wrongful acts, with immunity from civil liability as long as the employer does not act with ill will, provide untrue or inaccurate information, or disclose information in disregard for any state or federal law. (Nev. Stat. §41.755)

New Mexico
At the request of the employee, an employer may disclose information regarding the employee’s job related skill, reliability, ability, or illegal or wrongful acts, with immunity from civil liability as long as the employer does not act with ill will, provide untrue or inaccurate information, or violating any form of the employees civil rights. (NM Stat §51-12-1)

North Carolina
Employers disclosing job performance information to a prospective employer is immune from civil liability for the disclosure or resulting consequences.

The immunity granted does not apply if the the evidence establishes that the information disclosed was untrue and the employer knew or reasonably should have known the information was untrue.

Job performance information covered by this statute includes the employee’s suitability for reemployment including related skills, abilities, and traits and the reason for the employee’s separation. (N.C. Stat. §1-539.12)

North Dakota
An employer truthfully disclosing the date of employment, pay level, job description and duties, and wage-history information to a prospective employer is immune from civil liability for the disclosure and related consequences.

An employer disclosing job performance information to a prospective employer is presumed to be acting in good faith, although the presumption of good faith may be rebutted by showing that the information disclosed was knowingly false, disclosed with reckless disregard for the truth, deliberately misleading, or rendered with a malicious purpose.

Immunity for disclosure of job performance information is also destroyed if the information is in violation of a nondisclosure agreement or was otherwise confidential under law. (See N.D. Cent. Code §34-02-18.)

Ohio
At the request of the employee or former employee, an employer may disclose information regarding the employee’s job performance to a prospective employer and retain immunity from civil liability as long as the employer does provide false information and the employer has no knowledge of its falsity or acted with malice or reckless disregard for the truth. (OH Rev Code §4113.71)

Oklahoma
At the request of the employee or former employee, an employer may disclose information regarding the employee’s job performance to a prospective employer and retain immunity from civil liability as long as the employer does provide false information and the employer has no knowledge of its falsity or acted with malice or reckless disregard for the truth. (OK Stat. 40 §61)

Oregon
An employer disclosing job performance information to a prospective employer on request of the prospective employer or current or former employee is presumed to be acting in good faith and is immune from civil liability for the disclosure or its consequences.

A lack of good faith, proved by a preponderance standard and shown by a knowingly false or deliberately misleading disclosure or a disclosure rendered with malicious purpose or in violation of the current or former employee’s civil rights, destroys the immunity. (Or.Stat. §30.178)

Pennsylvania
Senate Bill 69 adds to the judicial code a new section under which an employer who provides information about a former or current employee’s job performance to a prospective employer “is immune from civil liability for such disclosure or its consequences” in any case brought by the employee,

unless the employee can prove by “clear and convincing evidence” that the employer acted in bad faith. The statute specifically defines the four circumstances in which an employee may rebut the privilege, by adducing sufficient clear and convincing evidence that the employer:

(1) disclosed information that it knew was false or should have known was false;

(2) knowingly disclosed materially misleading information;

(3) recklessly disclosed false information; or (4) disclosed information the disclosure of which was prohibited by law.

Rhode Island
Employer can provide fair and unbiased information about an employee or former employee’s gob performance at the request of the employee or prospective employer if they are acting in good faith.

So long as the employer does not provide knowingly false, deliberately misleading information nor provide it for malicious purpose, then the employer providing the reference is immune from civil liability for the disclosure. (RI §28-6, 4-1)

South Carolina
Section 41-1-65 of the South Carolina Code of Laws addresses this situation and provides, in part: Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current employee or former employee from a prospective employer of that employee shall be immune from civil liability for disclosure of the following information to which an employee or former employee may have access:

(1) written employee evaluations;
(2) official personnel notices that formally record the reasons for separation;
(3) whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and
(4) information about job performance.
(D) This protection and immunity shall not apply where an employer knowingly or recklessly releases or discloses false information.

South Dakota
Employer is not liable when it discloses in writing, information about the job performance of a current or former employee to a prospective employer on a written request. Any such request must be made available to the former employee at their written request.

The presumption of good faith may be cancelled by evidence showing the employer provided misleading information or disclosure of information not allowed by a nondisclosure agreement or considered confidential pursuant to law. (SD §60-4-12)

Texas
An employer may, but is not required to, disclose to a prospective employer on the request of the employee, job performance information including the manner in which an employee performed a position of employment and an analysis of the employee’s attendance, attitudes, effort, knowledge, behaviors and skills.

An employer is immune from civil liability for such disclosures unless the employer knew the information to be false or the employer disclosed the information in a reckless disregard for the truth. (TX§103.001-005)

Utah
Employer can act in good faith by providing information regarding the performance, professional conduct or evaluation of a current or former employee at the request of a prospective employer and may not be held civilly liable for such disclosure if the employer is presumed to act in good faith by not revealing any information that is false, or with reckless disregard, or with intent to mislead.

Virginia
An employer truthfully disclosing information regarding professional conduct, reasons for separating, or job performance, including information included in job evaluations, is immune to civil liability so long as the employer is not acting in bad faith.

An employer disclosing job performance information to a prospective employer is presumed to be acting in good faith, although the presumption of good faith may be rebutted by showing that the information disclosed was knowingly false, disclosed with reckless disregard for the truth, deliberately misleading, or rendered with a malicious purpose.

Information is defined by the statute to include facts, data and opinions. Job performance is defined by stature to include ability, promotions, productivity and disciplinary actions. Professional conduct is defined to include the ethical standards that govern the employee’s profession or lawful conduct that is expected of the employee. (VA §8.01-46.1)

Washington
An employer that discloses information about a current or former employee to a prospective employer or an employment agency, at that employer or agency’s specific request, is presumed to be acting in good faith and is immune from civil or criminal liability.

This immunity applies, however, only if the disclosure relates to one of the following: the employee’s ability to perform the job, the employee’s diligence, skill, or reliability in carrying out his or her duties, or any illegal or wrongful act committed by the employee that is related to the duties of his or her job.

The statute further establishes that the presumption of good faith may be rebutted only upon a showing of clear and convincing evidence that the information disclosed was knowingly false, deliberately misleading, or made with reckless disregard for the truth.

This is a much higher standard than that required in most civil proceedings (more likely than not), but is the same standard already applied by the courts in these cases.

Wisconsin
An employer, when he provides an employment reference to a prospective employer at the request of an employee or the prospective employer, the employer is presumed to be acting in good faith and is immune from all civil liability that may result from providing that reference. Wis. Stat. sec. 895.487.

However, the immunity may be lost if it is shown by clear and convincing evidence that the employer did not act in good faith when providing the reference.

Lack of good faith may be shown through evidence that the employer: knowingly provided false information in the reference; made the reference maliciously, or; made the reference in retaliation for the employee exercising certain statutory employment rights. (Wis. Stat. sec. 895.487(2))

Wyoming
Employer is protected from civil liability by providing information about a former employee to a prospective employer if acting in good faith. Bad faith is defined as providing the information known to be deliberately false, misleading, or rendered with malicious purpose. (WY §27-1-113)