Case of the Month: Should You Give A Negative Reference?

Written by: Crystal M. O'Brien, Esq.

What is an employer to do when faced with a request to give a reference for an employee who left on the worst of terms?  In this month’s highlighted case, an employee raised a concern that his employer was consistently providing him with poor work references.  So much so, the employee claims he was out of work for months due to the poor references. However, when he finally landed a job, rumors were started by the negative references and resulted in his loss of work with the new employer.

The ex-employee did not see a connection between the employer’s poor work references and the employee’s recent criminal arrest, detention, and conviction --- all of which occurred weeks prior to his employment termination.  The ex-employee also refused to consider that his arrest in front of co-workers and others within the industry could have alone been responsible for the rumors he accused his employer of starting.  Instead, the ex-employee turned to his former employer demanding monetary damages for his “wrongful termination” and defamatory references.

Contrary to the employer’s belief, imprisonment or detention will not end a former employee’s rights to seek damages.  Moreover, the employer was under no duty to disclose to others that the employee had been arrested for something unrelated to his occupation. The disclosure of this information risked legal exposure to costly attorney’s fees and court expenses to respond to a civil lawsuit challenging that disclosure.

While we were able to ultimately “contain” the claims made by this former employee, we were more importantly able to encourage the employer to adopt a limited employment reference policy.  In short, the employer will now limit all employment references to release information to prospective employers that share only an employee’s last title held and the beginning and ending dates of employment at the business.  Additionally, only designated representatives of the company will provide employment references and only upon a written request and/or consent by the employee.  Documentation of the references requested and given will then be recorded in the employee’s personnel file. 

Following these steps will limit an employer’s exposure to defamation claims and ward off costly claims that can be presented by employees who leave on bad terms.  To learn more about limited employment reference policies and similar good workplace practices, feel free to call our Labor and Employment Law Department at (800) 899-MMCI (6624).

Go back to MMC May 10 HR E-Newsletter

MMC HR E-Newsletter Archive

MMC Human Resources Tips