Tips for Avoiding Reference Check Defamation Exposure 

Following are five steps that HR professionals can take to lessen an employer's exposure to defamation claims arising from reference checks. These steps were developed by the labor and employment law firm of Jackson, Lewis, Schnitzler and Krupman.

1. Ensure accuracy. Make sure that employee evaluations are accurate, especially in the case of termination decisions. Truth is a complete defense to a defamation charge; if truthful information is given to a potential employer in a reference check, there is no basis for a defamation action. Documentation of supporting facts is essential to this policy.

2. Limit communication to scope of business. Communications, whether written or oral, internal or external, should concern work related matters only.

3. Use release forms. Use a written release to get an employee's consent to give information to prospective employers and to release the employer from all claims that might arise from the reference giving process. The former employee should be fully informed about what the release means for it to be an effective waiver of claims.

4. Be consistent. Centralize the process of giving references. Only human resource professionals trained in the legalities of providing information about former employees should be handling these inquiries.

5. Communicate on an as-needed basis. Provide information on a need-to- know basis only. Former employers may have a qualified privilege to communicate information, including negative information to prospective employers as long as the former employer reasonably believes the information to be true and the inquiring employer has a need to know the information being sought.