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Defamation
Defamation is a type of lawsuit in which someone claims that someone else has written or said something about them that is untrue and is so serious that it injures their reputation and keeps others from dealing with them. Defamation suits have recently been invoked with regard to unfavorable references. A common, modern day dilemma exists for all employers who are called to discuss a former employee. What can the employer say if the employee’s performance was poor? What if the employee was let go for a suspected theft? If an employer is hiring someone for a sensitive position, can it seek and obtain accurate references on a job applicant?
Defamation suits are a matter for state laws and the courts. Most states have handled defamation in similar ways. Certain generalizations can be made, such as:
- Truth is always a defense to the common law claim of defamation.
- Qualified privileges exist if a statement is made in good faith serving a business interest or purpose. A harmed employee can defeat a qualified privilege by showing malice-actual knowledge of falsity or reckless disregard for the truth.
- Some states provide employer immunity where references are given in good faith.
Despite the availability of defenses and the likelihood they may prevail in a civil suit, many employers are reluctant to do anything more than verify dates of employment, salaries, and other factual information. While truth may be a defense to a defamation action, absent immunity, employers may still have to defend themselves in private actions, and proving the truth can be difficult. Obtaining an applicant’s written consent allowing for the release of information by previous employers is helpful but does not eliminate the possibility of a suit.
Several states have enacted legislation creating immunity from civil suits for employers who provide references in good faith.
In response to industry concerns about the legal liability which could arise from providing information about driver safety performance history, Congress determined that the societal importance of this information is sufficient to grant limited liability to “motor carriers” by preempting state and local laws and regulations creating liability. This is carried out in section 4014 of TEA-21 (Transportation Equity Act for the 21st Century enacted June 9, 1998). The liability limitation applies to prospective and previous employers, their agents, and their insurance providers from defamation suits when investigating, using, or providing accurate information about safety performance histories of their drivers. The right of drivers to review such employer investigative records, and to have them corrected or include a rebuttal from the driver, is made statutory. Employers were required to begin implementing the new requirements (found in 49 CFR 391.23) on October 29, 2004.
Negligent referral
As a general rule in most states, employers have no legal obligation to provide information about a former employee. Recently, however, some suits have challenged that position, and liability may be found in unusual situations, particularly where the employee was known to have engaged in violent acts or somehow jeopardized others’ safety while with the former employer. Liability for failing to provide information has been termed “negligent referral.”
Liability for providing misleading information is another form of “negligent referral.” For example, a negligent referral suit might be invoked by a prospective employer when a former employer misleads the prospective employer by giving an overly positive reference for someone who was known to be less than glowing.
It’s possible for a employer to be held accountable for damage caused by an ex-employee in a new job if they didn’t fully reveal pertinent and potentially negative information when asked for a reference.
Here are some tips on how to avoid liability when providing job references:
Review all applicable state laws. This includes the laws that apply where the employee resides, where the prospective employer is located, and in all states in which your company operates. Some states have enacted legislation that gives employers qualified immunity when providing information for references. In states without immunity statutes, however, employers may not want to provide much information beyond dates of employment and positions held, but to avoid liability, a former employee’s documented record of violent, harassing, or unsafe actions should be shared.
Have a policy on references. Limit who is allowed to give references and what information can be provided. Some organizations dictate that all reference requests go through a single person or team, usually in the HR department.
Be consistent in how requests are handled. Work to ensure that the same process is followed for each reference request to avoid any claims of discrimination. It is a best practice to insist that disclosures be made only in writing and only upon written request from the prospective employer and with written permission from the employee.
Provide training: Equip all those responsible for providing references with proper training on your policy, process, and specifically what they can and cannot say about former employees.
Stick to the facts. Avoid giving opinions about an employee’s suitability for a prospective job, and use only documented evidence to share information related to an employee’s job performance.
Consult legal counsel. If you’re not sure about the risks of disclosing (or failing to disclose) information related to alleged misconduct in a reference check, contact an employment attorney before responding.