D. Job References and Defamation Claims

Employers are not legally obligated to furnish prospective employers with positive or negative job references. After a firing, management may apologetically advise at the termination interview Ònot to worry, you'll be given a positive reference.Ó Weeks later, however, the person making the promise may refuse to take or answer calls from prospective employers or merely confirm your dates of employment and title.

Tip:To avoid similar problems, request that a copy of a favorable letter of recommendation be given to you before you leave. The letter should state the dates of your employment, the positions held, and that you performed all your job duties in a diligent and satisfactory fashion. If possible, the letter should be signed by a qualified officer or supervisor who worked with you and knows you well. Do not rely on promises that the employer will furnish prospective employers with a favorable recommendation, since many do not once you are out the door. Always attempt to have such a letter in hand before you leave (see the letter on page 245 as an example).

To ensure receiving a favorable reference, knowledgeable employees type the letter themselves on company letterhead after being fired but before leaving the premises. With a signed, favorable letter of reference in hand, you can reduce the chances of receiving a poor reference.

If you cannot obtain a written letter of reference, try to choose the person who will field inquiries from prospective employers. Rehearse what will be said about you. Give only that person's name and telephone number to reduce the chance that harmful or damaging information will be discussed about you by other people at the company. Request that person to only handle inquiries on your behalf.

Counsel Comments:Employers are supposed to avoid discussing the decision to terminate or criticize you in front of nonessential third parties. The reason is that fired employees are increasingly suing former employers for defamation. For example, the Minnesota Supreme Court awarded four employees $570,000 because they had to reveal in job applications that their former employer had fired them. The plaintiffs had been fired for alleged gross insubordination for failing to comply with their manager's request to falsify certain expenditure reports. Following termination, the employees sought other positions of employment. In response to inquiries about their previous positions, the four employees stated that they had been fired for gross insubordination.

The Minnesota court ruled that a defamation had occurred because the terminated employees, when asked, would truthfully reply they were fired for insubordination. Any explanations the plaintiffs tried to provide prospective employers could not compensate for the highly negative impression caused by the words Ògross insubordination.Ó To make matters worse, the company's policy of withholding information after a job referral request only added to the innuendos.

Tip:This case is significant because it indicates that, in some states, employees fired on false charges of bad conduct can sue their former employers for defamation, even if it is the workers themselves who reveal the charges. Thus, it is important to understand what defamation is; if you are forced to repeat a defamatory job reference, speak to a lawyer immediately.

Defamation

Defamation occurs when a communication (either oral or written) is made about a person that tends to so harm that person's reputation as to lower her in the estimation of the community or to deter others from associating or dealing with her. Defamatory statements in written form constitute libel; defamatory statements in oral form constitute slander and the penalties are similar for each. Defamatory acts are quite common, such as when a newspaper reporter misstates a private person's comments during an interview, when a former employer maliciously provides an improper job reference, and when false gossip is repeated.

For defamation to occur there must be:

• A false statement made about someone;
• to a third party;
• which injures the person's reputation; and
• no absolute or qualified privilege exists as a legal bar to the lawsuit.

No defamation exists when a poor opinion about someone is given. To be actionable, the comment offered must be a statement of fact and not an opinion. If the statement is true, this is a valid defense. If the person alleging defamation is not mentioned by name, a valid case will exist if it is clear that she was the one being talked about and the statement was made to a third party.

Damages do not have to be proved in all instances. The law treats certain statements as defamatory per se, which means that the person or business does not have to prove actual damages to win a verdict; money can be recovered simply because the statement is untrue.

Examples of per se statements are:

• Accusing a person of serious misconduct in her business, trade, or profession (e.g., that a doctor or group medical practice she is affiliated with has trouble paying its bills, is discontinuing its operations and filing for bankruptcy, is financially unstable, incompetent, of poor moral character, unreliable or dishonest.)
• Imputing to a person the commission of a criminal offense.
• Charging a person with dishonesty (e.g., ÒShe is a crook and steals money from the companyÓ).
• Accusing a person of serious sexual misconduct (e.g., ÒShe is a whoreÓ).
• Stating that a person has a loathsome or deadly disease (such as AIDS).

In certain situations, such as in court proceedings and the employment context, people have an absolute or qualified privilege to make defamatory statements without legal consequences. For example, statements made about people by judges, witnesses and lawyers during trials are absolutely privileged. Employers have a qualified privilege to talk about former employees when giving job references. However, this doesn't mean an employer can talk maliciously about a former employee and tell untruths in an attempt to embarrass and scuttle future job opportunities.

To avoid problems, think first before disclosing private information concerning others. For employers, potentially damaging information in performance reviews and comments to prospective employers should be reviewed by a supervisor. Avoid having damaging memos about a person read by nonessential third parties. In many states, such as Connecticut, any dissemination of private employment data to prospective employers other than the dates of employment, position held and latest salary figures is illegal. Many states prohibit the dissemination of confidential private medical information as well.

Tip:Avoid disseminating any information about someone that can remotely be considered private. Do not repeat unconfirmed gossip or trade gossip, especially about the financial condition of a competitor, business or product. If you might be a victim of defamation, speak to a lawyer immediately to protect your rights.

To reduce the risk of defamation claims by ex-employees, employers are being advised by management attorneys to:

1. Never stand in the way of a terminated employee's future employment.

2. Maintain tight control over personnel files and avoid distributing personal information without an employee's consent.

3. Avoid giving negative references to prospective employers.

4. Avoid criticizing an individual in front of others at the exit or firing interview.

Counsel Comments:Some states treat untruthful job references as crimes. Also, as the Minnesota case demonstrates, if your ex-company refrains from releasing information, it may still be vulnerable in a suit in some states if you are forced to tell a prospective employer the reason why you were let go and the reason later proves to be false.

Protection for defamation may extend also to physical acts. For example, if you are suspected of theft and forcibly searched and interrogated when leaving the premises after a firing, the rough treatment observed by others may defame your reputation by holding you up to ridicule and scorn.

Recognize, however, that in any defamation lawsuit, truth is an absolute defense. This means that if a harmful but true statement is disseminated about you, you will probably not prevail. And, in most states, if the statement later proves to be untrue but was not spoken with an intentional attempt to harm you (i.e., proving malice) an employer's qualified privilege may exculpate it from liability.

Tip:If you suspect your efforts to obtain new employment are being sabotaged by an ex-employer, there are several steps to take. Have a friend contact the ex-employer and pretend that he or she is interested in hiring you. In many states, such telephone conversations can be legally taped without the permission of the other party. In fact, there are companies that specialize in acquiring information for terminated employees. Consult your yellow pages for pertinent firms.

Once you determine what is being said, write a letter similar to the one on page 250 to protest unfavorable job references and preserve your rights. If you do not receive a satisfactory response to your letter, if your letter is ignored, or if you suspect damaging information continues to be disseminated, contact a lawyer immediately for advice on how to protect your rights. The lawyer may recommend that he or she send a cease and desist letter to the company demanding that any alleged misconduct stop immediately to avoid expensive and protracted legal proceedings. Such a letter may do the trick.