Bad Reference=Illegal???

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Latest post Mon, Dec 3 2007 7:14 PM by Fxston. 5 replies.
  • Sat, Dec 1 2007 9:25 PM

    Bad Reference=Illegal???

    The following is my employer's policy on not giving out references. I don't know if this is the official wording. But this is how it was explained to me in an email. Is it true? Can an employer be sued for defamation if giving a negative reference . . . even if it's true?

    When it comes to post-employment references, most human resources representatives disagree. Instead, many employers give only the most basic facts regarding former employees, fearing that any qualification or additional facts, other than dates of employment, title and perhaps compensation, however truthful, will result in a defamation claim. Such claims have convinced most human resources representatives that honesty isn’t worth the hassle.
  • Sun, Dec 2 2007 9:27 AM In reply to

    • DCGirl
      Consumer
    • Top 75 Contributor
    • Joined on Thu, Jan 31 2002
    • Posts 966

    Feedback [*=*] re: Bad Reference=Illegal???

    Because we live in a litigious society, many employers have adopted a policy of only confirming dates, titles, and salaries when providing references. Even a frivolous lawsuit costs money.

    The reality is that, in providing references, an employer may say anything that is true or that it has a good faith belief is true. An employer may also express opinions.

    "We fired Joe because his cash register kept coming up short," is not defamation if the employer has documented that Joe's cash register kept coming up short.

    "I didn't think Joe did a good job with the Johnson account," is an opinion that does not rise to the level of defamation.
  • Sun, Dec 2 2007 3:16 PM In reply to

    re: Bad Reference=Illegal???

    Can a former employee alledge that things stated in a reference are untrue and therefore at least attempt to sue for defamation?
  • Mon, Dec 3 2007 11:55 AM In reply to

    • Beth3
      Consumer
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    • Joined on Sat, Mar 24 2001
    • Posts 5,466

    Feedback [*=*] re: Bad Reference=Illegal???

    Former employees can allege anything. The burden of proof would be on the employee to demonstrate that the reference provided was factually untrue or statements made were negligent and that the employee suffered damages as a result.

    FYI, most States have passed "hold harmless" referencing laws that provide a high degree of protection from such suits being brought against employers when they provide reference information in good faith, even if their good faith opinion is that "Joe" did a lousy job.
  • Mon, Dec 3 2007 1:16 PM In reply to

    • LynnM
      Lawyer
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    • Joined on Mon, Apr 3 2000
    • CA
    • Posts 28,248

    re: Bad Reference=Illegal???

    Yes - which is why many employers will not provide a reference.
  • Mon, Dec 3 2007 7:14 PM In reply to

    re: Bad Reference=Illegal???

    "Is it true?"

    Er, we can't possibly know, but presumably you can take employer at their word as to what the policy is.

    "Can an employer be sued for defamation if giving a negative reference . . . even if it's true?"

    Can they? Sure. But if what they are saying is true, the lawsuit won't get too far.

    "Instead, many employers give only the most basic facts regarding former employees, fearing that any qualification or additional facts, other than dates of employment, title and perhaps compensation, however truthful, will result in a defamation claim."

    That's their choice, but it's not necessary.

    "Can a former employee alledge that things stated in a reference are untrue and therefore at least attempt to sue for defamation?"

    Sure but, again, unless they can prove the untruths and that the untruths have damaged them, the lawsuit won't get far.
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