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Avoiding Defamation in Giving Employment References
by Anne Lane

When giving employment references for a former employee, there is a danger that you may end up being sued for defamation if the reference is negative and your former employee doesn’t get the job.  There are some things you can do to limit this risk.

One of the most important things you should do is tell the truth!  What this really means is that you must resist the temptation to exaggerate or tell partial truths even if your relationship with the former employee is not a good one.  It also means that you must be very careful to provide only objective information about the former employee.  Watch out for subjective statements like “Mr. Smith was an obnoxious jerk!”  Instead, simply state that you received several (documented) complaints from customers about Mr. Smith’s behavior.  Stick to the facts when providing a reference and don’t volunteer information on things that you aren’t asked about.

You should also make sure that the person you give a reference to has a legitimate business reason to request it.  If you receive a request by telephone, you won’t have any immediate way to determine if the caller is legitimate.  Instead, simply make it a policy that you will only reply to written reference requests.  Inform callers of this policy and let them know where they can send the request.

You should also limit who in your company gives employment references.  You could limit this to a human resources person who would only provide information that is documented in the employee’s records.  You could also allow a person’s direct supervisor to give the employment reference.  These policies will help avoid a situation where someone who doesn’t have direct knowledge about the employee’s work history provides a reference based on incorrect information.

Of course, one of the best steps you can take to avoid a defamation suit is to obtain a release from the employees that you provide references for.  If an employee leaves your company, bring up the issue of future references.  Don’t tell the employee that you won’t give them a reference unless they sign the release as this could invalidate the release if they do sign it.  In some states you may be required to give a reference anyway.  Talk with the employee about what you are willing to say about them in a reference if they sign the release.  Let them know if they don’t sign the release that you will keep the information you provide to a bare minimum.

Following these guidelines is one part of an overall strategy to help you lower the risk of being sued by a former employee.