Chapter 13 - § 13.10 • IMMUNITY FROM CIVIL LIABILITY FOR EMPLOYER DISCLOSING INFORMATION

• Jurisdiction: Colorado

§ 13.10 • IMMUNITY FROM CIVIL LIABILITY FOR EMPLOYER DISCLOSING INFORMATION

Colorado law gives employers significant protection from civil liability for disclosing information about current or former employees to prospective employers. This statute, C.R.S. § 8-2-114, which confers to employers a qualified immunity from civil liability, modified an existing statute that gave employers an affirmative defense to a claim for defamation arising out of the provision of a job reference. Under the previous statute, the affirmative defense turned on the reasonableness of the employer's actions, and, therefore, almost always created a factual issue for the trier of fact and precluded summary judgment.

Where the old statute provided an affirmative defense, however, the current statute provides an immunity from civil liability. While there are as yet no Colorado cases interpreting the contours of this immunity, employers can look to federal law interpreting the qualified immunity given governmental officials under 42 U.S.C. § 1983 for guidance. See Chapter 22, § 22.2.1. Under 42 U.S.C. § 1983, the Supreme Court has held that a qualified immunity shields governmental officials from the burdens of broad ranging discovery and the costs of trial, as well as from liability. Because this is an immunity, and not an affirmative defense, courts are encouraged to eliminate suits that fail to clear the high hurdle required to avoid the immunity.

The Colorado statute reads as follows:

(3) 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:
(a) The information disclosed by the current or former employer was false; and
(b) The employer providing the information knew or reasonably should have known that the information was false.
(4) This section applies to any employee, agent, or other representative of the current or former employer who is authorized to provide and who provides information in accordance with this section.
(5) Any employer that

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