Fear Of Defamation Lawsuits For Employee References Is Overblown
Employers Should Give Employee References
I have a pet peeve and it has to do with employee references. My pet peeve was triggered last week when I read an article in the National Law Journal about the subject.
“Don’t say anything good about an employee on Linked In” – the lawyers warned – you might get sued for defamation. 
As you know, most employers will not give a reference. The only information they will give to a prospective employer about a former employee is dates of employment and positions with the company. Some will give salary information. That’s it.
It didn’t use to be this way. When I started working, it was common to get a letter of reference from an employer. In fact, it was the practice.
Sometime later, and I can’t precisely pinpoint the date (but I think it was in the late 80’s) that practice stopped.
The reason it stopped is because management lawyers told their clients not to give references because they might get sued for defamation. That advice spread like wildfire and suddenly no one could get a reference.
In my opinion, this is some of the worst advice ever given to corporate America and here’s why.
The Threat of Employee Lawsuits for Defamation is Overblown
So what about the argument that the employer may get sued for defamation? In my opinion it’s overblown and ridiculous.
I have been following the law of defamation in the workplace for a long time. I have written about it, spoken about it, and taught it. The truth is, suits in which employees sue their employers for defamation are just not that common and never were.
I have been representing employees for thirty years. Like many employment lawyers, we get hundreds of calls each month from employees who are having problems at work or who have lost their jobs.
In all of my years of practice, I can only recall two defamation cases. One case involved a medical professor who was terminated and falsely accused of being a “womanizer” and incompetent teacher. The second case involved an employee who was fired and falsely accused of stealing.
In both instances, the reasons given for the discharges were false, motivated by racial malice, and were communicated to a large circle of people.
So in thirty years – two cases --that’s two out of thousands. I doubt the statistics are much different for most other employment lawyers. The threat of defamation cases involving employee references is way overblown.
Employees Should Get References Because It’s The Fair Thing To Do
I have represented hundreds of employees who put in 20, 30, 40 years with a company – with excellent records of performance --who can’t get a letter of reference. This corporate behavior, is seems to me, is plainly cruel and completely counter productive.
If employees have put their time in with a company, and have done a good job, don’t they deserve a letter of reference? I am talking about employees who were let go through no fault of their own – without cause – downsizing, job elimination, layoff, etc.
I have represented employees who never missed a day of work over decades at a job. Isn’t only fair that he or she gets a letter saying that this person is a very dependable employee who never missed a day of work?
The same is true for employees with an excellent record of performance for the company. Don’t they deserve a letter stating that they were a good employee and solid performer?
Since there is no legitimate reason not to, employers should treat employers fairly and give them the references they deserve.
References Help People Get Jobs And Decrease The Chance Of A Lawsuit
It’s not only fair and right to give a letter of reference when it is deserved; it’s the smart thing to do. That’s because a lack of references make it harder to get a job, which takes employees to lawyers, which leads to lawsuits.
Without a reference, a prospective employer can’t help but think that there is something wrong with the employee who has lost his or her job. The question naturally comes to mind: “If he was as good as he says he was, why did he lose his job?
On the other hand, letters of reference are a tremendous help in getting re-employed, and individuals who are able to get jobs are far less likely to see a lawyer to try and figure out if discrimination was at play.
Even if a person has a wrongful discharge case, the plaintiff employee’s damages are virtually extinguished, or dramatically diminished, once he or she finds new employment.
So what’s the downside of giving a reference? The downside on giving a reference is that the employer may get sued.
That can happen if:
- the employer communicated false and malicious information about the employee to third parties
- the employee can find a lawyer and pay the expenses of the litigation
- the employee can discover the evidence to prove the case
Those three elements do not come together all that often. If it’s an honest reference, based on an honest opinion of the person familiar with the employee’s performance, there is nothing to be concerned about.
I think employers are foolish for not giving honest letters of reference when they are deserved. It makes no sense not to. This is particularly true in today’s climate of downsizing and the difficult job market that goes with it.
Employers would be exponentially better off giving either oral or written references which would help their terminated employees get back in the workforce.
The Danger In Not Giving An Honest Reference
I have a real problem with employers who won’t give an honest reference because of the simple fact that there are employees who do very bad things, and the prospective employer should have a right to know about it. For example:
- If a nurse is fired because he/r she is a drug addict and was caught on multiple occasions stealing drugs at the hospital, shouldn’t the next prospective employer know about it?
- If a schoolteacher was fired because he/she sexually harassed multiple students, shouldn’t the next prospective employer know about it?
- If a delivery person was fired because he/she assaulted a customer, shouldn’t the next prospective employer know about it
- If an employee is fired for stealing company funds or equipment, shouldn’t the next employer know about it?
The list can go on and on. I can not think of one good reason why an employer who has had this experience does not communicate this information to a prospective employer.
The legal advice which says “don’t give references” is not only bad for business in my opinion; it presents a danger to us all.
Conclusion
It’s time to reconsider this senseless and impractical ban on employee references. The reasons which justify it just don’t hold water.
- Employees who have worked hard and lost jobs through no fault of their own deserve good references
- It’s also dangerous not to give honest references when the situation involves employees who have been engaged in serious misconduct.
Good references help people find work.
The focal point of the subject of defamation is honesty. If an employer gives information out about an employee which is true, there is no claim for defamation.
I am confident that references can be managed in a way that is both fair to employees and can protect employers from lawsuits. They’re not mutually exclusive.
It seems to me that we would all be a lot better off if the corporate culture in this instance turned on honesty and fairness instead of lawsuit prevention.
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