Referencing references: Be careful
Published 02/20/01

A material misrepresentation in a job reference could expose the former employer to legal liability from either the former employee who did not get the job or the new employer who accepted the employee (and later deeply regretted it). There is generally no obligation for the former employer to make representations; just to speak the truth when she chooses to speak. Employers often take the approach of merely verifying the employment of the former employee, the dates of that employment, the job title, and possibly the compensation paid the former employee.

However, in general, providing honest reference information when requested in good faith will be protected by a conditional privilege against a defamation claim. Of course, employers generally prefer to avoid costly and time consuming legal conflict and by providing just a verification of employment and the job title without explaining the reason for the leaving, the threat of a suit for a bad reference is substantially diminished.

It is also important to note that an absolute defense to a defamation suit is truth. Of course, employers not only are concerned with the cost of time and money in presenting such a successful legal defense, but are also concerned for both the safety of themselves and for the safety of their employees when deciding on making references as well as obtaining detailed, honest references for their own employment candidates.

As an employer seeking job candidates, it is generally prudent to obtain from the job candidate a reference authorization, waiver and hold harmless agreement which can be provided to the former employers to raise their comfort level with respect to the risk of legal repercussions of providing honest and more complete job references.

In such an agreement the job applicant would authorize their former employers to disclose the past employment information including the reason for termination and any disciplinary measures taken against the employee. The agreement specifically releases both the prospective employer and the former employer from any claims or liability arising out of the release of that information. While such a release will not ease any safety concerns for the former employer giving the reference, it should alleviate some concerns of the legal repercussions from an honest, good faith reference.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.