Liability for Employment References?

Reference checks are a fact of life, and for many good reasons. But sometimes sensitive information—or even damaging information—can be conveyed in response to a reference check. Inevitably this leaves some job applications with the impression that they were defamed by their former employer. This is a common topic that employers and employees ask their attorneys about. As set out below, it is difficult for an employee to win a defamation case against a former employer due to a negative employment reference.

In Kansas, a defamation plaintiff must prove: (1) false and defamatory words (2) communicated to a third person (3) which result in harm to the reputation of the person defamed. Even if a former employee proves these elements of a defamation claim, the employer may still be immune from liability. Our Kansas courts and legislature have long recognized the employer’s legitimate interest in learning about job applicants through reference checks, by granting various types of immunity to current and former employers when they report information in response to a reference check by a prospective employer.

The Kansas statute is K.S.A. 44-119a. It provides that an employer generally enjoys qualified immunity from liability for disclosing information about a current or former employee to a prospective employer. When qualified immunity attaches, the employee cannot establish a defamation claim unless she proves not only that the statements made were false, but also that the statements were made with actual evil-mindedness or a specific intent to injure.

Finally, Kansas law also provides employers with absolute immunity from liability under certain circumstances, which means the plaintiff-employee cannot recover for defamation, period. First, an employer is absolutely immune from liability based upon its disclosure of the following information to a prospective employer: dates of employment, pay level, job description/duties, and wage history. Second, an employer enjoys absolute immunity when it responds to a prospective employer’s written requests for information about a current or former employee, by disclosing in writing: (1) Written employee evaluations which were conducted prior to the employee’s separation from the employer and to which an employee shall be given a copy upon request; and (2) whether the employee was voluntarily or involuntarily released from service and the reasons for the separation, provided such information is available to the former employee.

To sum it up, employers have a fair amount of latitude in getting and giving employment references.