Employment Reference Immunity Act

Employment Reference Immunity Act

Summary

Due to increasing threats of litigation, few employers will give job references for employees. This deprives good employees from being able to receive positive evaluations and also results in employers hiring employees they would not have hired if they were aware of the employees’ previous conduct. The Employment Reference Immunity Act is designed to encourage employers to give good faith, truthful job references about employees. The Act accomplishes this goal by granting employers absolute and qualified immunity, depending on the scope of the information, for responding to prospective employers’ requests for information.

Model Policy

Section 1. {Short Title.} This Act shall be known as the Employment Reference Immunity Act.

Section 2. {Legislative Declarations.}

This legislature finds and declares that:

(A) Recent court decisions have had a substantial chilling effect on employers providing good faith, factual information concerning employees, to the extent that a 1995 study by the Society for Human Resource Management showed that 63 percent of responding employers will no longer give information about a former employee out of fear of a lawsuit.

(B) The threat of lawsuits harms both employers and employees, because employers should be able to give out truthful information without fear of lawsuits and good employees ought to be able to get the references they need to get other jobs.

(C) Courts have eroded the common law “qualified privilege” protecting employers from litigation to such an extent that employers face the presumptive burden of proving that they acted in good faith in giving a job reference.

(D) At the same time, courts have begun to impose greater responsibility on employers to exercise due care in hiring new employees.

(E) As a result, the absence of any immunity results in suits for invasion of privacy, defamation of character, negligent hiring, discrimination and black-listing, and prima facie tort.

(F) The Employment Reference Immunity Act will assure that employers will have the protection needed to give good faith, valuable, and truthful information to prospective employers.

Section 3. {Definitions.}

Section 4. {Main Provisions.}

(A) An employer, or an employer’s designee, who discloses truthful and unbiased information about a current or former employee’s job performance to a prospective employer of the employee shall be presumed to be acting in good faith and qualifiedly immune from civil liability for the disclosure and the consequences of the disclosure.

(B) An employer, or an employer’s designee, who discloses information about a current or former employee to a prospective employer of the employee shall be absolutely immune from civil liability for the disclosure and the consequences of the disclosure where the disclosure concerns:

(1) date of employment;

(2) pay level;

(3) job description and duties; and

(4) wage history.

(C) An employer, or an employer’s designee, shall be presumed to be acting in good faith and qualifiedly immune from civil liability for damages arising as a result of hiring or retaining an employee unless the employer, or employer’s designee, knows that the hiring or retaining poses a threat to others, provided the employer, or employer’s designee, has taken reasonable steps to obtain and review the credentials and background of the employee prior to hiring.

Section 5. {Subordinate Provisions.}

(A) The presumption of good faith established in this title may be rebutted by clear and convincing evidence that the information disclosed was knowingly false, disclosed with reckless disregard for the truth, deliberately misleading, disclosed for a malicious purpose, or in the violation of a civil right of the current or former employee.

(B) Employer immunity may not apply in this title where the information is disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statutes, rules or regulations.

Section 6. {Severability Clause.}

Section 7. {Repealer Clause.}

Section 8. {Effective Date.}

 

Approved by  ALEC Board of Directors on January 1996.

Reapproved by  ALEC Board of Directors on January 28, 2013.

Keyword Tags: Commerce Insurance and Economic Development Task Force, Employment