Other Risks in Providing
The main risk an employer faces in providing employment references is being
sued for defamation.
Discussed below are additional claims that may arise from unfavorable employment
references. These potential claims should give you further incentive to limit
any job references to true and objective facts that are relevant to a former
employee's job-performance abilities.
- Invasion of privacy claims. Employers who disclose information
about an employee's personal life open the door to being sued for invasion
of privacy. In an invasion of privacy claim, employers can be held liable even
if the information they disclosed is true, because truth is not a
defense as it is in a defamation claim. Accordingly, you should refrain from
disclosing information about an employee's financial affairs or marital
problems or other private facts unless you are absolutely certain that the
disclosure will serve legitimate business purposes. If you feel compelled to
disclose private facts, you can limit your potential liability by securing
in advance the
employee's consent to the disclosure.
- Equal employment opportunity claims. Employers who refuse to
provide references or who provide unjustifiably negative references for
former employees have been sued on the basis that their actions damage the
employees' equal employment opportunities guaranteed by federal or state
fair employment laws. Although such laws on their face generally protect
specified classes of "employees" from discrimination, courts have
been willing to extend their protection to former employees as well.
- Interference with prospective employment claims. In several states,
a former employee can sue an employer who gives false information to
prospective employers with the intention of interfering with the former
employee's prospects for employment. This type of claim is similar to, and
may be filed in conjunction with, a defamation claim. It differs slightly
from defamation in that it focuses primarily on the employer's intent in
providing the unfavorable reference.
- Blacklisting claims. In a majority of the states, an employer's
"blacklisting" of a former employee is a crime. Traditionally,
blacklisting laws have been applied to prevent employers from providing bad
job references in retaliation for a former employee's participation in union
or other protected labor activity. However, the laws generally are broad
enough to cover any communications that are designed to prevent former
employees from securing employment. Most blacklisting laws specifically
permit employers to supply letters of recommendation or service as long as
the information provided is neither false nor defamatory.