Protect Employers who Tell the Truth on References

Posted by Christopher Geehern on Oct 25, 2013 11:43:00 AM

It’s the call that Massachusetts employers dread – a fellow employer wants a reference about a job applicant who used to work for your company.

ReferencesDo you tell the second employer the truth about the circumstances surrounding the employee’s departure and risk being sued by the former worker? Or do you provide a vague, uninformative reference that could cause the second employer to sue if the employee causes the same problems at the new work site?

The simple act of one employer providing an honest reference about a former employee to another employer has all but broken down under an avalanche of litigation from all sides.

That’s why AIM has filed legislation to provide employers with protection from civil lawsuits arising out of the employee reference process.  The bill, House 1682, would protect employers from liability if information disclosed to prospective employers in the hiring process is truthful. 

AIM testified in support of the bill Friday before the Legislature’s Joint Committee on the Judiciary.

“In recent years, an unprecedented wave of employment-related lawsuits has flooded the courts.  One particularly troublesome aspect of this phenomenon is the number of libel and slander claims against employers based on negative job interviews, unfavorable job references, negative termination interviews, and other forms of workplace defamation,” said Brad MacDougall, Vice President of Government Affairs.

Many employers have reacted to the litigation threat by watering down their employee performance evaluations or ceasing to provide references altogether.   Danger remains, however, since a non-specific reference could produce a lawsuit for contributing to another employer's "negligent hire." 

Several jurisdictions even recognize a "doctrine of compelled self-disclosure" whereby a silent employer could be liable when a discharged employee complies with the request of a prospective employer to disclose the reason for departure from a prior employment.

Employer reticence about providing an accurate and honest job reference is a loss to all parties. It also sets back efforts to control violence in the workplace because employers who know the background of candidates for employment are able to make informed decisions regarding appropriate hiring and the safety of others. 

It's time to protect employers who tell the truth.

Topics: Massachusetts Legislature, Issues, Employment Law

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