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Job References

by The Human Equation, Inc. on 10/6/2008
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A former employee is currently interviewing for a new job, and the prospective employer is now asking me for a reference. This employee quit during our busiest time of year without giving any advance notice. Is it legally permissible for me to reveal this information to the prospective employer if I am asked about the circumstances surrounding the employee's separation from the company?

Yes. There have been many instances in which former employees have sued their former employers for giving a bad or negative job reference to a prospective employer. These cases, which typically include some form of defamation claim, allege that the negative job reference has prevented the former employee from obtaining gainful employment. However, lawsuits brought on these grounds are generally unsuccessful for two reasons. First, although defamation cases are typically governed by a state's common law and are thus subject to inter-state variations, the fact that the challenged statement is true generally remains a valid defense. Second, many states have enacted "reference immunity" statutes that may provide employers with immunity from liability for any consequences flowing from a truthful, good-faith response to a request for a reference.

For example, Indiana's reference immunity statute states that "an employer that discloses information about a current or former employee is immune from civil liability for the disclosure and the consequences proximately caused by the disclosure, unless it is proven by a preponderance of the evidence that the information disclosed was known to be false at the time the disclosure was made." In Maine, the employer is entitled to immunity if the disclosure was made in good faith. Other states, including Florida, Utah, and Pennsylvania, also have some form of reference immunity statute. Despite these protections, many employers maintain a policy of giving very little information about former employees beyond verifying dates of employment. Given the litigiousness of ex-employees vis-à-vis their former employers, such caution is understandable and prudent. Nevertheless, employers wishing to give a good-faith, detailed, and accurate reference about a former employee should consult an attorney to learn which, if any, protections are afforded such disclosures.

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