ABA Family Legal Guide

Law and the Workplace

On the Job

Privacy in the Workplace

What are the legal implications of providing employee references to prospective employers?

Approximately twenty states prohibit employers from engaging in blacklisting. Blacklisting consists of intentionally taking action aimed at preventing someone from obtaining employment. Truthful statements concerning an individual's ability to perform the job in question are not considered to be blacklisting.

The manner in which a reference is made and its content can give rise to employer liability under state tort law relating to defamation, intentional interference with a prospective employment contract, intentional infliction of emotional distress, or negligent misrepresentation. (See chapter 14, "Personal Injury," for more on tort law.)

Defamation occurs when one person's false statement injures the reputation of another person. However, most states recognize that giving references to prospective employers in good faith is a defense against defamation charges.

Providing false information to a prospective employer with the intent of causing an applicant to lose the job constitutes intentional interference with a prospective employment contract.

Disclosure of private personal matters unrelated to work can result in an invasion of privacy or intentional infliction of emotional distress claim.

Last, a false statement that causes a loss of money can be grounds for negligent misrepresentation.

To be safe, an employer should limit the number of people authorized to provide references on its behalf. Second, statements based on hearsay or gossip should be avoided. Third, only items that have a direct bearing on an individual's work performance should be disclosed. Finally, obtaining a release from the former employee before providing any information to third parties can help to limit any liability.