Job References
Benjamin L. Pratt
Whether an employer-employee relationship ends on good terms or with acrimony, the common final act of an employee requesting a reference for a new job has increasingly lead to litigation against employers. From the former employer’s standpoint, they find themselves in a predicament where they would like to give former employees a reference to assist them in finding another job, however they know they need to be cautious in how they go about responding for requests for references.
Employers have found that a candid, negative response to a request can invite suit by the former employee which could entail a possible defamation of character, liable or even slander action. As a result, some employers provide only the typical “name, rank and serial number” response which in essence does not help the former employee find employment. It also does not help the prospective employer. In some cases where employers have declined to say anything about the employee, except perhaps dates of employment, a new employer who would have preferred to be warned about a sub-par employee has brought litigation against the former employer. With the current economic downturn and thousands of lay-offs being conducted across the country, these concerns are prevalent and employers need to understand their obligation and/or exposure to liability in these cases.
The growing dilemma is such that employers are telling their employees from the outset that they will get no job reference good, bad, or indifferent when they leave. Under such a policy, inquiring prospective employers would not get enough information as to the prospective employees’ qualification for the job. Other employers are willing to give a reference, but only after an employee signs documents consenting to release all there is to know to prospective employers and waiving their right to sue over anything that is said in the reference. This policy will also lead to employers possibly not getting certain information about a prospective employee based on the fact that they have not provided that consent to their former employer in the past.
Many companies and employers have these types of policies; however, the good news for businesses in Pennsylvania is their exposure to liability is constrained by statute. An employer who discloses information about a current or former employee’s job performance to a prospective employer is presumed to be acting in good faith unless lack of good faith is demonstrated by clear and convincing evidence. If clear and convincing evidence is provided, an employer is immune from civil liability for such disclosure or its consequences in any case brought against the employer by the current or former employee. Even with this statutory immunity, some employees do challenge former employer references as to whether or not they were in “good faith”. The presumption of good faith may be rebutted only by clear and convincing evidence establishing that the employer disclosed information that:
- the employer knew was false or, in the exercise of due diligence, should have known was false;
- the employer knew was materially misleading;
- was false and rendered with reckless disregard as to the truth or falsity of the information; or
- was information the disclosure of which is prohibited by any contract, civil, common law, or statutory right of the current or former employee.
Therefore, the burden on the former employee is great, but employers must make sure that all letters of reference are backed by truth and documentation to support their good faith reference. Furthermore, Pennsylvania case law supports immunity for employers who are providing references and/or letters outlining why an employee is no longer working for that certain employer.Courts look extensively at the intent behind the writing of the reference to determine the meaning that exists. Without clear and convincing evidence of the employer’s lack of “good faith” in providing the letter, the courts will find employers immune. As in the case of Goralski v. Pizzimenti, the Court found that the use of the word “misconduct” in a letter did not entail a second meaning, and therefore any defamation claim against the former employer was found not to prevail. Therefore, when employers write letters of reference they need to make sure the language of the letter is clear and precise, as well as supported by documentation in one’s personnel file.
Should you have any questions in regard to job references and how to respond, please do not hesitate to contact CGA’s Labor and Employment Department.
