Exploring Policies to Prevent "Passing the Harasser" in Higher Education (2023)

Chapter: States with Statutes Regarding Civil Liability Exemptions

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Page 43 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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States with Statutes Regarding Civil Liability Exemptions

State Statute Statute Text
Alaska Alaska Stat. § 09.65.160 Immunity for good faith disclosures of job performance information

An employer who discloses information about the job performance of an employee or former employee to a prospective employer of the employee or former employee at the request of the prospective employer or the employee or former employee is presumed to be acting in good faith and, unless lack of good faith is shown by a preponderance of the evidence, may not be held liable for the disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the employer or former employer
  1. recklessly, knowingly, or with a malicious purpose disclosed false or deliberately misleading information; or
  2. disclosed information in violation of a civil right of the employee or former employee that is protected under AS 18.80 or under comparable federal law.
(text found through Lexis, 2022)
Arizona A.R.S. § 23-1361(C) Blacklist; definition; exceptions; privileged communications; immunity
  1. An employer who in good faith provides information requested by a prospective employer about the reason for termination of a former employee or about the job performance, professional conduct or evaluation of a current or former employee is immune from civil liability for the disclosure or the consequences of providing the information. There is a presumption of good faith if either:
    1. The employer employs less than one hundred employees and provides only the information authorized by this subsection.
    2. The employer employs at least one hundred employees and has a regular practice in this state of providing information requested by a prospective employer about the reason for termination of a former employee or about the job performance, professional conduct or evaluation of a current or former employee.
  2. The presumption of good faith under subsection C of this section is rebuttable by showing that the employer disclosed the information with actual malice or with intent to mislead. This subsection and subsection C of this section do not alter any privileges that exist under common law. For the purposes of this subsection, “actual malice” means knowledge that the information was false or was provided with reckless disregard of its truth or falsity.
  3. Communications concerning employees or prospective employees that are made by an employer or prospective employer, or by a labor organization, to a government body or agency and that are required by law or that are furnished pursuant to written rules or policies of the government body or agency are privileged.
…
  1. A court shall award court costs, attorney fees and other related expenses to any party that prevails in any civil proceeding in which a violation of this section is alleged.
(text found through Lexis, 2022)
Arkansas A.C.A. § 11-3-204 Providing references to prospective employers
  1. The current or former employer disclosing the information is presumed to be acting in good faith and is immune from civil liability for the disclosure or any consequences of the disclosure unless the presumption of good faith is rebutted upon a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.
Page 44 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
California Cal. Civ. Code § 47(c) Privileged publication or broadcast

A privileged publication or broadcast is one made:
  1. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(text found through Lexis, 2022)
Colorado Colo. Rev. Stat. § 8-2-114 Immunity from civil liability for employer disclosing information - employer shall not maintain blacklist - credit lists excepted
  1. Any employer who provides information about a current or former employee’s job history or job performance to a prospective employer of the current or former employee upon request of the prospective employer or the current or former employee is immune from civil liability and is not liable in civil damages for the disclosure or any consequences of the disclosure. This immunity shall not apply when such employee shows by a preponderance of the evidence both of the following:
    1. The information disclosed by the current or former employer was false; and
    2. The employer providing the information knew or reasonably should have known that the information was false.
(text found through Lexis, 2022)
Delaware Del. Code Ann. tit. 19, § 708, 709 Employment information
  1. An employer or any person employed by the employer who discloses information about a current or former employee’s job performance to a prospective employer is presumed to be acting in good faith; and unless lack of good faith is shown, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith may be rebutted upon a showing that the information disclosed by such employer was knowingly false, was deliberately misleading or was rendered with malicious purpose; or that the information was disclosed in violation of a nondisclosure agreement, or was otherwise confidential according to applicable federal, state or local statute, rule or regulation.
  2. For purposes of this section, the word “information” includes:
    1. Information about an employee’s or former employee’s job performance or work-related characteristics;
    2. Any act committed by such employee which would constitute a violation of federal, state or local law; or
    3. An evaluation of the ability or lack of ability of such employee or former employee to accomplish or comply with the duties or standards of the position held by such employee or former employee.
(text found through Lexis, 2022)
Page 45 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Florida Fla. Stat. § 768.095 Employer immunity from liability; disclosure of information regarding former or current employees

An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

(text found through Lexis, 2022)
Georgia Ga. Code Ann. § 34-1-4 Employer immunity for disclosure of information regarding job performance
  1. As used in this Code section, the term:
    1. “Employee” means any person who is employed by an employer described in paragraph (2) of this subsection.
    2. “Employer” means any individual engaged in a business, corporation, S-corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, association, or government entity.
  2. An employer as defined in subsection (a) of this Code section or any person employed by an employer and designated as the employer’s representative who discloses factual information concerning an employee’s or former employee’s job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statute, rule, or regulation.
(text found through Lexis, 2022)
Hawaii Haw. Rev. Stat. § 663-1.95 Employers’ job reference immunity
  1. An employer that provides to a prospective employer information or opinion about a current or former employee’s job performance is presumed to be acting in good faith and shall have a qualified immunity from civil liability for disclosing the information and for the consequences of the disclosure.
  2. The good faith presumption under subsection (a) shall be rebuttable upon a showing by a preponderance of the evidence that the information or opinion disclosed was:
    1. Knowingly false; or
    2. Knowingly misleading.
Idaho Idaho Code § 44-20(2) Employer duties
  1. An employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, or at the request of the current or former employee, may not be held civilly liable for the disclosure or the consequences of providing the information.

    There is a rebuttable presumption that an employer is acting in good faith when the employer provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee or at the request of the current or former employee.

    The presumption of good faith is rebuttable only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with deliberate intent to mislead.

    For the purposes of this section, “actual malice” means knowledge that the information was false or given with reckless disregard of whether the information was false.
(text found through Lexis, 2022)
Page 46 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Illinois 745 ILCS 46/10 No liability for providing truthful information

Any employer or authorized employee or agent acting on behalf of an employer who, upon inquiry by a prospective employer, provides truthful written or verbal information, or information that it believes in good faith is truthful, about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for the disclosure and the consequences of the disclosure.

The presumption of good faith established in this Section may be rebutted by a preponderance of evidence that the information disclosed was knowingly false or in violation of a civil right of the employee or former employee.

(text found through Lexis, 2022)
Indiana Burns Ind. Code Ann. § 22-5-3-1(b) Preventing discharged employee from obtaining work — Penalty — Disclosure — Immunity from liability — Communications
  1. An employer that discloses information about a current or former employee is immune from civil liability for the disclosure and the consequences proximately caused by the disclosure, unless it is proven by a preponderance of the evidence that the information disclosed was known to be false at the time the disclosure was made.
(text found through Lexis, 2022)
Iowa Iowa Code § 91B.2 Information provided by employers about current or former employees — immunity
  1. An employer or an employer’s representative who, upon request by or authorization of a current or former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current or former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer’s representative acted unreasonably in providing the work-related information.
Kansas K.S.A. § 44-119a Employer immunity from liability and suit for disclosure of employment information
  1. Unless otherwise provided by law, 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 qualifiedly immune from civil liability.
  2. Unless otherwise provided by law, an employer who discloses information about a current or former employee to a prospective employer of the employee shall be absolutely immune from civil liability. The immunity applies only to disclosure of the following:
    1. Date of employment;
    2. pay level;
    3. job description and duties; and
    4. wage history.
  3. Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current or former employee from a prospective employer of that employee shall be absolutely immune from civil liability for disclosure of the following information to which an employee may have access:
    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.
  4. This section shall apply to causes of action accruing on and after the effective date of this act.
(text found through Lexis, 2022)
Page 47 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Kentucky Ky. Rev. Stat. Ann. § 411.225 Employer immunity from civil liability for disclosure of employee information – Exceptions – Effect of provision
  1. An employer who provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of that employee or prospective employer, shall be immune from civil liability arising out of the disclosure unless the plaintiff in the civil action proves: (a) That the employer disclosed the information knowing that it was false, with reckless disregard of whether it was true or false, or with intent to mislead the prospective employer; or (b) That the disclosure of the information by the employer constitutes an unlawful discriminatory practice under KRS Chapter 344.
Louisiana La. R.S. § 23:291(A-B) Disclosure of employment related information; liability for hiring certain employees; presumptions; causes of action; definitions
  1. Any employer that, upon request by a prospective employer or a current or former employee, provides accurate information about a current or former employee’s job performance or reasons for separation shall be immune from civil liability and other consequences of such disclosure provided such employer is not acting in bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a preponderance of the evidence that the information disclosed was knowingly false and deliberately misleading.
  2. Any prospective employer who reasonably relies on information pertaining to an employee’s job performance or reasons for separation, disclosed by a former employer, shall be immune from civil liability including liability for negligent hiring, negligent retention, and other causes of action related to the hiring of said employee, based upon such reasonable reliance, unless further investigation, including but not limited to a criminal background check, is required by law.
(text found through Lexis, 2022)
Maine 26 M.R.S. § 598 Employment reference immunity

An employer who discloses information about a former employee’s job performance or work record to a prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences. Clear and convincing evidence of lack of good faith means evidence that clearly shows the knowing disclosure, with malicious intent, of false or deliberately misleading information. This section is supplemental to and not in derogation of any claims available to the former employee that exist under state law and any protections that are already afforded employers under state law.
Maryland Md. Code Ann., Cts. & Jud. Proc. § 5-423 Immunity — Disclosure of information regarding employee or former employee
  1. An employer acting in good faith may not be held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee of the employer:
    1. To a prospective employer of the employee or former employee at the request of the prospective employer, the employee, or former employee; or
    2. If requested or required by a federal, State, or industry regulatory authority or if the information is disclosed in a report, filing, or other document required by law, rule, order, or regulation of the regulatory authority.
  2. An employer who discloses information under subsection (a) of this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer:
    1. Acted with actual malice toward the employee or former employee; or
    2. Intentionally or recklessly disclosed false information about the employee or former employee.
(text found through Lexis, 2022)
Page 48 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Massachusetts ALM GL ch. 111, § 72L1/2 Abuse and Neglect — Reporting — Immunity from Liability

A facility, home health agency, hospice program, the directors thereof and, employees and consultants thereof shall be immune from liability as a result of compliance with the provisions of sections 72F to 72L, inclusive.

A facility, home health agency or hospice program as defined in section 72F which is asked to provide an employment reference with respect to a named individual who is either working for or has worked for such facility, home health agency or hospice program shall not be liable for disclosing information related to the named individual’s employment history, including whether the former employee was voluntarily or involuntarily released from service and the reasons for such employee’s release from employment with the former employer unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that such information was false.
Michigan MCLS § 423.452 Disclosure of information relating to employee’s job performance; immunity; exception

An employer may disclose to an employee or that individual’s prospective employer information relating to the individual’s job performance that is documented in the individual’s personnel file upon the request of the individual or his or her prospective employer. An employer who discloses information under this section in good faith is immune from civil liability for the disclosure. An employer is presumed to be acting in good faith at the time of a disclosure under this section unless a preponderance of the evidence establishes 1 or more of the following:
  1. That the employer knew the information disclosed was false or misleading.
  2. That the employer disclosed the information with a reckless disregard for the truth.
  3. That the disclosure was specifically prohibited by a state or federal statute.
Minnesota Minn. Stat. Ann. § 181.933 Notice of Termination

Subdivision 1. Notice required. An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.

Subd. 2. Defamation action prohibited. No communication of the statement furnished by the employer to the employee under subdivision 1 may be made the subject of any action for libel, slander, or defamation by the employee against the employer.
Nebraska Neb. Rev. Stat. § 48-201 Current or former employer; disclosure of information; immunity from civil liability; consent; form; period valid; applicability of section
  1. (b) The current or former employer disclosing such information shall be presumed to be acting in good faith and shall be immune from civil liability for the disclosure or any consequences of such disclosure unless the presumption of good faith is rebutted upon a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.
New Mexico N.M. Stat. Ann. § 50-12-1 Employer immunity from liability for references on former employee

When requested to provide a reference on a former or current employee, an employer acting in good faith is immune from liability for comments about the former employee’s job performance. The immunity shall not apply when the reference information supplied was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil rights of the former employee.

(text found through Lexis, 2022)
Page 49 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Nevada NRS § 41.755 Limitations on liability of employer who discloses information regarding employee to prospective employer of employee; exceptions
  1. Except as otherwise provided in subsection 3, an employer who, at the request of an employee, discloses information regarding:
    1. The ability of the employee to perform the employee’s job;
    2. The diligence, skill or reliability with which the employee carried out the duties of the employee’s job; or
    3. An illegal or wrongful act committed by the employee, to a prospective employer of that employee is immune from civil liability for such disclosure and its consequences.
North Carolina N.C. Gen. Stat. § 1-539.12 Immunity from civil liability for employers disclosing information
  1. An employer who discloses information about a current or former employee’s job history or job performance to a prospective employer of the current or former employee upon request of the prospective employer or upon request of the current or former employee is immune from civil liability and is not liable in civil damages for the disclosure or any consequences of the disclosure. This immunity shall not apply when a claimant shows by a preponderance of the evidence both of the following:
    1. The information disclosed by the current or former employer was false.
    2. The employer providing the information knew or reasonably should have known that the information was false.
North Dakota N.D. Cent. Code § 34-02-18 Immunity for providing employment reference
  1. An employer, or an employer’s agent, who discloses information about a current or former employee’s job performance to a prospective employer of the employee is presumed to be acting in good faith. Unless lack of good faith is shown, the employer or employer’s agent is immune from civil liability for the disclosure and the consequences of providing that information. The presumption of good faith may be rebutted by a preponderance of the evidence that the information disclosed was:
    1. Knowingly false;
    2. Disclosed with reckless disregard for the truth;
    3. Deliberately misleading; or
    4. Rendered with malicious purpose.
Ohio Ohio Rev. Code Ann. § 4113.71 Immunity of employer as to job performance information disclosures
  1. An employer who is requested by an employee or a prospective employer of an employee to disclose to a prospective employer of that employee information pertaining to the job performance of that employee for the employer and who discloses the requested information to the prospective employer is not liable in damages in a civil action to that employee, the prospective employer, or any other person for any harm sustained as a proximate result of making the disclosure or of any information disclosed, unless the plaintiff in a civil action establishes, either or both of the following:
    1. By a preponderance of the evidence that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose;
    2. By a preponderance of the evidence that the disclosure of particular information by the employer constitutes an unlawful discriminatory practice described in section 4112.02, 4112.021, or 4112.022 of the Revised Code.
Page 50 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Oklahoma Okla. Stat. Ann. tit. 40, § 61 Disclosure of information by employer - Presumption of good faith - Immunity from liability
  1. An employer may disclose information about a current or former employee’s job performance to a prospective employer of the current or former employee upon request of the prospective employer and with consent of the current or former employee, or upon request of the current or former employee. A state agency, as defined in Section 840-2.5 of Title 74 of the Oklahoma Statutes, may disclose information regarding a current or former employee’s job performance to another state agency which is a prospective employer of the current or former employee without the employee’s consent. The employer is presumed to be acting in good faith, unless lack of good faith is shown by a preponderance of the evidence. The current or former employer shall be immune from civil liability for the disclosure or any consequences of such disclosure unless the presumption of good faith is rebutted upon a showing that the information disclosed by the current or former employer was false and the employer providing the information had knowledge of its falsity or acted with malice or reckless disregard for the truth.
Oregon Or. Rev. Stat. § 30.178 Liability of employer for disclosing information about employee to new employer

An employer who discloses information about a former employee’s job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by a preponderance of the evidence, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the employer was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil right of the former employee protected under ORS chapter 659 or 659A.
Pennsylvania 42 Pa. Cons. Stat. Ann. § 8340.1 Employer immunity from liability for disclosure of information regarding former or current employees
  1. General rule.—An employer who discloses information about a current or former employee’s job performance to a prospective employer of the current or former employee, upon request of the prospective employer or the current or former employee, is presumed to be acting in good faith and, unless lack of good faith is demonstrated by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences in any case brought against the employer by the current or former employee. The presumption of good faith may be rebutted only by clear and convincing evidence establishing that the employer disclosed information that:
    1. the employer knew was false or in the exercise of due diligence should have known was false;
    2. the employer knew was materially misleading;
    3. was false and rendered with reckless disregard as to the truth or falsity of the information; or
    4. was information the disclosure of which is prohibited by any contract, civil, common law or statutory right of the current or former employee.
Rhode Island R.I. Gen. Laws § 28-6.4-1(c) Inspection of files
  1. An employer that, upon request by a prospective employer or a current or former employee, provides fair and unbiased information about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for the disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was:
    1. Knowingly false;
    2. Deliberately misleading;
    3. Disclosed for a malicious purpose; or
    4. Violative of the current or former employee’s civil rights under the employment discrimination laws in effect at the time of the disclosure.
Page 51 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
South Carolina S.C. Code Ann. § 41-1-65(C) Employers granted immunity from liability for disclosure of information
  1. Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current employee or former employee from a prospective employer of that employee shall be immune from civil liability for disclosure of the following information to which an employee or former employee may have access:
    1. written employee evaluations;
    2. official personnel notices that formally record the reasons for separation;
    3. whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and
    4. information about job performance.
South Dakota S.D. Codified Laws Ann. § 60-4-12 Presumption of good faith disclosure of employment information to prospective employers

Any employer or agent of the employer, who in writing, discloses information about the job performance of an employee or former employee to a prospective employer of that person at the written request of the prospective employer or the employee or former employee is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, may not be held liable for the disclosure or its consequences. Any written response to the written request shall be made available to the employee or the former employee upon written request. For purposes of this section, the presumption of good faith is rebutted upon a showing that the employer or agent of the employer:
  1. Recklessly, knowingly, or with a malicious purpose, disclosed false or deliberately misleading information; or
  2. Disclosed information subject to a nondisclosure agreement or information that is confidential under any federal or state law.
Tennessee Tenn. Code Ann. § 50-1-105 Providing Employee Information to Prospective Employers — Good Faith

Any employer that, upon request by a prospective employer or a current or former employee, provides truthful, fair and unbiased information about a current or former employee’s job performance is presumed to be acting in good faith and is granted a qualified immunity for the disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was:

Knowingly false;

Deliberately misleading;

Disclosed for a malicious purpose;

Disclosed in reckless disregard for its falsity or defamatory nature; or

Violative of the current or former employee’s civil rights pursuant to current employment discrimination laws.

(text found through Lexis, 2022)
Texas Tex. Lab. Code Ann. § 52.031(d) Blacklisting Offense; Penalty
  1. This section may not be held to prohibit a corporation, company, or individual from giving, on application from a discharged employee or a person desiring to employ the employee, a written truthful statement of the reason for the discharge. The written statement may not be used as the cause for a civil or criminal action for libel against the person who furnishes the statement.
Page 52 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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State Statute Statute Text
Utah Utah Code Ann. § 34-42-1 Employer references — Civil liability — Rebuttable presumption — Common law
  1. An employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, may not be held civilly liable for the disclosure or the consequences of providing the information.
  2. There is a rebuttable presumption that an employer is acting in good faith when the employer provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee.
  3. The presumption of good faith is rebuttable only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with intent to mislead.
  4. For purposes of this section “actual malice” means knowledge that the information was false or reckless disregard of whether the information was false.
  5. This section does not alter any privileges that exist under common law.
(text found through Lexis, 2022)
Virginia Va. Code Ann. § 8.01-46.1 Disclosure of employment-related information; presumptions; causes of action; definitions
  1. Any employer who, upon request by a person’s prospective or current employer, furnishes information about that person’s professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.
Wisconsin Wis. Stat. § 895.487 Employer references — Civil liability

An employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of s. 111.322.
Wyoming Wyo. Stat. § 27-1-113 Employer immunity for disclosure of certain employee information; rebuttal of presumption
  1. An employer who discloses information about a former employee’s job performance to a prospective employer or to an employer of the former employee is presumed to be acting in good faith. Unless lack of good faith is shown by a preponderance of evidence, the employer is immune from civil liability for the disclosure or for the consequences resulting from the disclosure.
  2. For purposes of subsection (a) of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former employer was knowingly false or deliberately misleading or was rendered with malicious purpose.

*NOTE: This table may not be complete and is not intended to serve as legal advice. It is simply intended to inform conversations about the statutory environment that may affect some policies to prevent passing the harasser.

Page 43 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 44 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 45 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 46 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 47 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
Save
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Page 47
Page 48 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 49 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
Save
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Page 50 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
Save
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Page 50
Page 51 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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Page 51
Page 52 Cite
Suggested Citation: "States with Statutes Regarding Civil Liability Exemptions." Serio, T., A. Blamey, L. Rugless, V. R. Sides, M. Sortman, H. Vatti, and Q. Williams. 2023. Exploring Policies to Prevent "Passing the Harasser" in Higher Education. Washington, DC: The National Academies Press. doi: 10.17226/27265.
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