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Can a Bad Job Reference Get an Employer Sued?

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By Daniel Taylor, Esq. on October 28, 2014 3:45 PM

Giving a job reference for a former employee who left on good terms is rarely a problem for employers.

But what about giving a bad reference for a former employee who was fired or otherwise left your employment on bad or unpleasant terms? Employers may be torn between warning a future employer about the person they are considering bringing on board and the potential consequences of giving a negative reference.

But what are those consequences? Can a bad reference result in an employer getting sued?

Fear of Defamation Lawsuits

What many employers fear when it comes to giving a bad reference for a former employee is a lawsuit for defamation. Defamation generally refers to statements which are harmful to a person's reputation. Written defamation is known as libel, while spoken defamation is known as slander.

While defamation lawsuits frequently involve untrue statements, they may also involve statements that a person may believe to be true but is unable to actually verify. Not only could telling a potential employer a harmful falsehood about a former employee lead to a defamation lawsuit; the same is possible when doling out suspicions which cannot be factually verified.

Tips for Giving References

The most important thing to remember when giving a reference is to stick to the facts. Truth is a defense to defamation. So even in the event of a lawsuit, as long as your statements can be factually verified, you will likely not be liable for defamation.

But a better idea may be to do your best to avoid a lawsuit entirely. Here are a few tips you may want to consider to help avoid potential legal trouble:

  • Be brief. The less information you provide, the less room there is for error. Stick to dates of employment, salary information, job title, and other factual information.
  • Don't be unnecessarily negative. Even if the former employee really rubbed you the wrong way, being overly or unnecessarily negative in your reference may come back to bite you.
  • Don't lie. On the opposite end of the spectrum, however, covering up for the misdeeds of a former employer might also subject you to a lawsuit by the prospective employer.
  • Don't drop hints. If you can't come out and say it, don't try to drop hints. Communicating defamatory statements to another person, even in a roundabout way, may subject you to liability.

To learn more about the laws regarding employee termination, the hiring process, and managing employees, check out FindLaw's section on Employment Law and Human Resources.

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