Guarding Against Defamatory
When giving employment references, you can reduce your risk of being sued for
defamation if you keep in mind the following key points:
- Be truthful. If your statements are true, they are not defamatory.
For this reason, refrain from making any statements that you are not
prepared to back up and substantiate if you are sued. Give objective facts
or opinions and conclusions that you can support with objective facts,
rather than mere allegations, speculation, or gossip. For example, you can
safely state that an employee was fired for missing too many days of work.
However, once you start providing unsubstantiated opinions on reasons for
the absenteeism, such as that the employee was drinking too much or was into
illegal drugs, you increase your risk of being sued.
- Be clear and unambiguous. Keep in mind that statements that are
technically true may still be defamatory if they are incomplete or
misleading. For example, an employer stated that an employee was fired for
drug use but neglected to state that the employee's refusal to hire a
supervisor's relative also contributed to the firing decision. The
incomplete statement was defamatory because it unduly emphasized the
employee's improper conduct. If you should decide to discuss why an employee
left your business, state the reasons in objective and specific terms.
Refrain from stating that an employee was terminated "for cause,"
"insubordination," "unsatisfactory performance," or
other nonspecific reason, because such phrases may be defamatory by
- Be objective. The tone of your statements is also important. Your
references should not sound petty, vindictive, or accusatory. No matter how
trying your relationship with the former employee may have been, you should
try to discuss the facts in an objective, nonmalicious way.
- Be responsive. References should be limited in scope to information
that the inquiring employer requests. This does not mean that you should
feel compelled to provide all requested information, because generally
you're under no
legal obligation to provide employment references at all. Rather, the
notion here is that you should not volunteer any unfavorable information
that is not requested.
- Stick to job-related facts. Do not provide any information that is
irrelevant to the employee's performance or behavior in the workplace.
Comments about an employee's personal life are especially hazardous, because
even if the comments are true, they may raise invasion
of privacy issues.
- Be selective in choosing your audience. Limit your disclosure of
employee information to those persons who have a legitimate interest in that
information. A statement that is not defamatory when made to a prospective
employer may be defamatory if it is made to friends, spouses, employees, or
others who have no business reason to know the information.
- Limit telephone references. Because you need to be sure that a
person to whom you are providing an employment reference has a real business
interest in receiving the information, you should use care in providing
references over the phone. Unless you are going to limit your references to
basic employment data, at a minimum you should arrange to provide the
information in a return call. This will give you an opportunity to verify
who the caller is. The better alternative is to have the caller make the
reference request in writing.
- Get signed releases or consents. Your best protection against
defamation and other claims that may arise from giving employment references
is to get the former employee to consent
to your release of information.