Employers often face the tension between giving honest feedback about former employees and the risk of defamation or tort liability if a former employee claims a reference was malicious, false or misleading. In Tennessee, that tension is addressed — at least in part — by Tenn. Code Ann. § 50-1-105, a statutory “reference immunity” provision that protects employers who provide employment-related information in good faith. Understanding the scope, strengths and limitations of § 50-1-105 is essential for any lawyer counseling Tennessee employers on reference disclosures and risk management.

What the Statute Does (and What It Does Not)

At its core, § 50-1-105 provides a “qualified immunity” to any employer who — upon request by a prospective employer or the current/former employee — “provides truthful, fair and unbiased information about a current or former employee’s job performance.”¹ When an employer meets those criteria, the statute presumes the employer is acting in “good faith,” insulating them from civil liability for the disclosure and any consequences.

Concretely, the statute is triggered when:

• A prospective employer (or, in some cases, the employee or former employee) asks for information about job performance; and
• The responding employer answers truthfully, fairly and without bias.

If those conditions are met, § 50-1-105 acts as a shield — a statutory codification of what at common law historically would have been a “qualified privilege” in defamation or related tort suits.

However, it’s also important to keep in mind the statute’s limitations. The statute does not require employers to provide information. It merely protects those who choose to do so in good faith. Despite this statutory protection, many employers will choose not to provide a reference at all or only provide dates of employment and last position held (rather than anything related to job performance) out of an abundance of caution.

Employers should not get too far afield with the information provided in a reference: the statute is limited to information about “job performance.” If an employer discloses information that goes beyond the “job performance” category, then the protections afforded by the statute might not apply.

The immunity is qualified, not absolute. The “good faith” presumption is rebuttable, meaning that if a former or current employee (or prospective employer) shows by a preponderance of evidence that the information was knowingly false, deliberately misleading, malicious, made in reckless disregard for its falsity or defamatory nature, or violated the employee’s civil rights, the employer loses the immunity. But as the Tennessee Supreme Court has recognized, “mere negligence is not enough to rebut the presumption in favor of the employer’s good faith.”²

While the decisions interpreting the statute are slim at best, one case highlights the limitations on the protections afforded by the statute. In Claybrook v. Sunoco, a dispute in arbitration whose award was later confirmed by a federal court, the employer was not entitled to take advantage of the protections of the statute because the information contained in the reference communications implied facts that weren’t true.³ For example, the employer failed to provide the neutral reasons why the plaintiff was not getting a job offer. It implied that the plaintiff was a poor employee when in fact her performance review said otherwise (a fact that was never shared in the reference). One manager failed to tell the prospective employer that her opinion of the plaintiff was based on a single incident.

Another manager blamed the plaintiff for things that were only partially her own fault, which were not disclosed to the prospective employer. And finally, the employer failed to share the positive things contained in the plaintiff’s evaluation. Claybrook serves as a reminder that references must be fair and unbiased to afford employers the immunity they seek.

Additionally, the statute does not override other statutory or common-law causes of action tied to employment discrimination laws. For example, if the disclosure itself violated civil-rights or anti-discrimination statutes (or was used in a discriminatory manner), such claims could remain viable.

In short, § 50-1-105 encourages employers to share candid, job-related references — but only if they do so responsibly.

The Practical Implications

For Tennessee employers, § 50-1-105 is not a license to “spill the beans” — or as younger generations might say, “spill the tea” — on former employees to their prospective new employers. It provides protections for employers who provide references, but the information provided must be truthful, fair and unbiased information and limited to the employee’s job performance. As Detective Joe Friday, of “Dragnet” fame, would say, “Just the facts, ma’am.” So, for those employers who wish to provide a reference about a former employee’s job performance, it gives them an opportunity to do so responsibly without fear of retribution.

The public policy implications of the statute shouldn’t be overlooked. Because many employers adopt “no-comment” reference policies for fear of defamation liability, § 50-1-105 offers a statutory reason to adopt more nuanced, honest reference practices — which in turn helps prospective employers make more informed hiring decisions and supports better workforce outcomes.

From a risk-management standpoint, § 50-1-105 helps reduce the chilling effect on references; it allows employers to share relevant job performance data — including disciplinary history or reasons for discharge — when requested. This could improve hiring outcomes, reduce recidivism of poor performers and increase transparency.

Yet § 50-1-105’s protection has its practical limitations and blind spots:

• It does not apply to disclosures made outside the narrow “upon request by a prospective employer (or the employee/former employee)” context. An employer who volunteers negative statements to third parties who are not prospective employers forfeits immunity.
• It does not address negligent-hiring or public-safety risks. For example, if an employer fails to disclose relevant criminal history or egregious misconduct — or does not conduct a reasonable investigation — § 50-1-105 does not excuse negligent-hiring liability to third parties harmed later by the employee’s misconduct.
• There is no statutory requirement that references be in writing, delivered to the candidate or capped in scope; this openness may lead to inconsistent practices and difficulty for employees to dispute or correct inaccurate information.

Why This Matters for Tennessee Employers — and Litigation Risk

In practice, many Tennessee employers default to “no-comment” reference policies. That may feel protective — but it carries its own costs. “No-comment” references deprive prospective employers of useful information, potentially lead to poor hiring choices and avoid the transparency that helps manage risk.

By contrast, a well-crafted reference policy that leverages § 50-1-105’s protection — ideally using written references, documented, fair and unbiased — allows employers to be forthright, responsible, and protective of their interests.

Counsel advising Tennessee employers should therefore:

• Review and, if needed, revise reference-disclosure policies to ensure compliance with § 50-1-105;
• Prefer written references over informal (oral) feedback whenever feasible. This eliminates — or at least mitigates — disputes about the substance of the reference;
• Document any negative feedback with specific facts, avoid vague judgments (e.g., “bad attitude”), and avoid speculative, hearsay or bias-tainted remarks;
• Maintain consistent, objective standards across employees to avoid discriminatory or retaliatory inference; and
• Educate human resources and supervisory personnel about their obligations and the legal standard under § 50-1-105.

At the same time, lawyers should be alert to the statute’s limitations — including the risk that reference immunity may not cover negligent-hiring liability, or situations outside a “requested reference” context.

The Reference Wrap-Up

Tenn. Code Ann. § 50-1-105 plays a valuable, albeit narrow, role in Tennessee employment law. It codifies a protective “qualified immunity” for employers who provide fair, truthful, unbiased job-performance information, thereby encouraging candor and transparency in references. But its protection is contingent on good faith, and it leaves open important gaps — including standardization of reference practices, clarity on burden and proof, and no cover for negligent-hiring or third-party liability.

For Tennessee employers and their counsel, § 50-1-105 can be part of a broader risk-management toolbox. Employment-law practitioners should advise clients to approach reference disclosures intentionally — using good-faith, fact-based, documented references — rather than reflexively defaulting to “no comment.” |||

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is a lawyer with Kramer Rayson LLP in Knoxville. He represents businesses, educational institutions and religious institutions in employment- and civil rights-related matters. He holds a bachelor’s degree from the University of Tennessee and a law degree from the University of Tennessee College of Law.

NOTES
1. Tenn. Code Ann. § 50-1-105.
2. Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 575 (Tenn. 1999).
3. Claybrook v. Sunoco GP LLC, 1:18-cv-29, 2023 WL 2664740 (E.D. Tenn. March 28, 2023).