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Don’t count on total immunity from references

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in Human Resources

Q. I have a question about providing honest feedback during reference requests. Is it better to defend the fact that I provided a truthful (negative) assessment, rather than trying to explain why I can't give any reference at all? Aren't we protected by negligent referral and reference immunity laws? —M.R., Utah

A. It's true that many states' common laws or statutory rules give employers qualified immunity from defamation claims when providing references. But don't get too comfortable; such immunity is almost never absolute. The possibility of litigation and liability usually arise whenever employers provide something other than a neutral reference.

So let's be clear: Providing a neutral letter of reference is the safest way to go. That's why many employers do that and nothing more. But it still won't completely insulate you from “negligent referral” liability. (Many states require certain types of employers—usually those involved in health, child care or elderly services—to disclose certain information when responding to a reference check.)

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