Many people panic at the idea that their former employers are saying terrible, nasty things about them to anyone who will listen — potential employers, members of the industry, and even internally to other employees. But in actuality, most employers are far too concerned about defamation claims to gratuitously damage the reputation of a former employee.
The prospect of a reference check terrifies employees who have left their jobs on less-than-wonderful terms.
Maryland has a statute that protects employers from liability for making certain good faith disclosures about a former employee’s job performance or the reasons for the termination of employment, when such disclosures are made to prospective employers or upon request by industry regulatory authorities. Specifically, Md. Courts & Judicial Proceedings Article § 5-423 states:
- (a) An employer acting in good faith may not be held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee of the employer:
- (1) To a prospective employer of the employee or former employee at the request of the prospective employer, the employee, or former employee; or
- (2) If requested or required by a federal, State, or industry regulatory authority or if the information is disclosed in a report, filing, or other document required by law, rule, order, or regulation of the regulatory authority.
- (b) An employer who discloses information under subsection (a) of this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer:
- (1) Acted with actual malice toward the employee or former employee; or
- (2) Intentionally or recklessly disclosed false information about the employee or former employee.
Although the District of Columbia does not have a comparable statute, under the case of Crowley v. North American Telecommunications Ass’n., 691 A.2d 1169 (D.C. 1997), employers enjoy a qualified privilege with respect to communications “made in good faith upon a subject matter ‘in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty to a person having a corresponding interest or duty….’” (citations omitted). So, the qualified privilege is a defense to what would otherwise be considered to be defamatory.
Keep in mind that many reference requests are handled through a central Human Resources Department, or even by a third party vendor, who likely has only minimal information about the former employee, such as the dates worked and the last position held. Typically, that is the only information the former employer will provide or verify. Sometimes, the reference provider can advise whether the former employee is eligible for rehire, or what their ending salary was.
At the end of the employment relationship, the employee should verify the employer’s policy with respect to references and the release of employment-related information. If the employee seeks greater clarity, he or she should contact the Human Resources Department, in writing, and request specific answers regarding what information the company will share, with whom it will share it, and who specifically (by title or name) will respond to requests for references or employment verification.
There is a simple solution for individuals who are concerned about what the former employer is stating in response to reference checks or employment verification requests: have a trusted friend or colleague call the company and request employment verification or a reference. See who provides the reference, and see what information that person actually discloses. Isn’t that preferable to agonizing about the unknown?
An employee who has concerns about responses a former employer has provided, or may provide, in response to a request for a reference check or employment verification should speak directly with an employment lawyer to address those specific concerns. Of course, an employer who is uncertain of what he or she may disclose about a former employee is also advised to talk with an employment lawyer for specific guidance.