Employment References

Employment References

Tristate Employment References Attorney

How a Tristate Employment References Attorney Can Help Your Business

Employers may be hesitant to offer employee references whether good, bad, or indifferent. An inaccuracy may expose the employer to a defamation claim by the former employee, but a failure to disclose important information about the employee may expose the employer to liability to the new employer.

Talk to a tristate employment references attorney in WV, KY, or OH for help walking this tightrope. These experienced labor attorneys know how to help employers establish references policies to avoid defamation and negligent failure to warn claims, and  can serve as a sounding board for ongoing advice on how to take advantage of the statutory protection in employment references laws in WV, KY, and OH. 

Slander, Libel, and Per Se Defamation

Employers who give references may run the risk of defending against a defamation claim if the reference was inaccurate. Defamation includes both slander (the spoken word) and libel (the written word). Liability for defamation, either spoken or written, requires that a person “publish” the defamatory or false information to a third person, without privilege. 

In most states, including West Virginia, Kentucky, and Ohio, truth is a defense to defamation. However, because truth is a defense, the employer bears the burden of proving that the statement made was true. In addition, under West Virginia defamation law, evidence of an apology may help mitigate damages

In the context of employment references, employers also run the risk of defending against a per se defamation action. In a claim for per se defamation, also known as libel per se, is a type of defamation claim in which the statement is alleged to be so harmful that the plaintiff does not need to prove special damages. In other words, damages are presumed. 

Most defamation cases involving an employee reference involve per se defamation. That means the employee is relieved of the requirement of proving damages from the defamation; rather, damages are presumed. Savvy employers seek qualified guidance on how to prevent or effectively defend against these types of claims.

Why a “No References” Policy is Problematic

Employers may conclude that the best way to avoid a defamation lawsuit is to adopt a “no reference” policy. Although this may avoid the risk of defamation claims, this approach has several disadvantages. 

First, depending on the size of the company, it may be difficult to enforce a “no reference” policy. In other words, a valued former employee may receive a laudatory reference from a manager, whereas a difficult employee may receive the “no reference policy” response. Second, an employer may nevertheless be obligated for safety and security reasons to disclose information about a former employee who may pose a danger to others. 

Obviously, managers and supervisors cannot predict a former employee’s dangerous behavior. However, they may find themselves in a difficult spot: deciding between giving a reference that an employer would refute as untrue or giving no reference and being subject to suit from a subsequent employer for failure to disclose relevant information. A tristate employment references attorney can sift through the available information and determine what facts should or should not be passed along in a reference. 

Employer Immunity Regarding References in WV, KY, and OH

Some states have provided protection for employers who in good faith give accurate and truthful references. For example, in West Virginia an employer is immune from civil liability for disclosure or its consequences when the employer in good faith has provided adverse, job-related information about a former or current employee to a prospective employer. Employers should note that there are also exceptions to this immunity. 

Another example can be found in the banking and financial services industry. Under WV Code § 31A-4-44, a financial institution may provide employment information about a former employee to another financial institution but only to the extent of the employee’s active participation in a violation of any state or federal statute, rule, or regulation related to financial institutions that was reported to authorities.

Kentucky’s reference immunity statute provides that an employer who provides information about the job performance, professional conduct, or evaluation of a former employee to another employer as requested by either the employee or the employer is immune from civil liability arising out of the disclosure.

Similarly, under Ohio’s reference immunity law, an employer who discloses requested information about an employee to a prospective employer generally is generally not liable to the prospective employer, the employee, or any other person for harm that results from the disclosure. The statute provides several exceptions, including the employer’s bad faith or malicious intent.

How Do Discrimination Laws Impact Giving Employment References?

Employers may not know the extent to which discrimination laws apply to former employees. For example, if a former employee who made a discrimination or harassment claim or assisted in another employee’s claim is given a negative reference, he or she might bring a claim for retaliation, alleging that the negative reference was actually retaliation for a protected activity. 

The Ohio statute and the Kentucky statute governing reference immunity specifically exclude employers acting with discriminatory intent from the immunity provided.

Where to Find a Trusted Tristate Employment References Attorney

A tristate employment references attorney can help employers negotiate the minefield of difficult employee references and employee recommendations in WV, KY, and OH. Contact Jenkins Fenstermaker, PLLC via our online contact form or by calling (304) 523-2100 locally or (866) 617-4736 toll-free.