prospective employer or other person a false statement that results in damage to the former
employee’s reputation. Defamation is commonly referred to as “slander” if the communication is
verbal and as “libel” if the communication is written. Employers have traditionally been
cautioned about relating information that is not formally documented or for which no objective
evidence exists. Thus, the more information provided, the greater the likelihood of a defamation
or privacy invasion suit by the former employee. Awards in successful suits may include damages
for lost earnings, mental anguish, pain and suffering, and even punitive damages.
Recent court decisions may have changed all of that or at least created confusion for
employers about what to disclose. If an employer gives a positive reference for a fired employee,
the employee could sue for wrongful termination. In situations where the employer knows that a
former employee has a history of criminal violence or extremely aggressive behavior, the
employer may have a legal obligation to provide such information to a prospective employer.
Questions arise as to what to do if you are not sure that the information about the previous
employee is true. The risk of remaining silent is that you could be sued for negligently failing to
disclose the information if the former employee were to harm someone on the next job. On the
other hand, you could be sued for defamation if you do disclose the information and the former
employee can successfully establish that it is not true.
Some attorneys recommend that companies have employees who are leaving the
organization sign a form releasing the employer from any liability for responding truthfully
during the course of giving references. All inquiries for references should be handled through an
established point of contact, and only written requests for references should be considered. Only
accurate and verifiable information should be reported.
Activities
1. Make a list of types of statements that a former employer should generally avoid making
when giving employment references.
2. Write an organizational policy that addresses the appropriate guidelines for giving employee
references. Include statements concerning appropriate content and the manner in which such
information should be issued.
Answers may vary but may include the following: