Job reference immunity statutes

Job reference immunity statutes are state laws enacted to protect employers from liability when disclosing information about current or former employees. In order for an employer to be immune from liability, the reference provided must be factual and accurate, based on documented information, and not given with malice.

According to the Washington State Legislature, an employer who discloses information about a former or current employee 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. It is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: 

1. The employee’s ability to perform their job.
2. The diligence, skill, or knowledge of the employee.
3. Illegal Act committed by the employee.

What are the benefits of job reference immunity statutes?

Few employers will provide employee job references due to the increased risk of litigation. As legal scholars, journalists, and other workplace observers noted large jury verdicts in job reference cases, employers became more cautious about providing references. Problems can also arise when employers provide positive references for some employees but not others. This prevents good employees from receiving positive evaluations and leads to employers hiring employees they would not have hired if they knew about the employees’ previous behavior. The Employment Reference Immunity Act is intended to encourage employers to provide accurate and truthful job references for their employees. The Act achieves this goal by providing employers with absolute or qualified immunity for responding to prospective employers’ requests for information, depending on the scope of the information.

Common law principles of job reference immunity statutes

Under common law, employers who provide job references are entitled to a qualified or conditional privilege. The privilege’s purpose is to encourage candid and open workplace communication, including employers to provide references without fear of defamation liability. Some courts may also apply these privileges to claims of interference with business relations. The Employers are protected by common law qualified rights unless they abuse them.

Objectives of job reference immunity legislation

Prospective employers, new coworkers, and the public are all harmed when companies refuse to disclose hazardous or incompetent staff information. Furthermore, if refusing to offer relevant references becomes routine business practice, fear of litigation significantly restricts workplace communication to harm companies, employees, and society.

Language of job reference immunity statutes

What sort of behaviour constitutes a breach of trust? How strong must the evidence be to establish an employer’s ill faith? What types of information are protected under the Act, and under what conditions?

Can employers and workers depend on common law and the immunity statute? The statutes sometimes give little advice or are unintelligible in answering these and other concerns, which might vary considerably.

A model policy looks like this:-

Section 1: Title

Section 2: Declarations

Section 3: Definitions

Section 4: Main provisions

Section 5: Subordinate provisions

Section 6: Severability clause

Section 7: Repealer clause

Section 8: Effective date