Employment Ref.

Giving Employment References

THE ISSUES OF EMPLOYMENT REFERENCES

Employers and employees alike worry about job references.

Employers are concerned about potential liability related to their responses to reference checks as well as the completeness of their own reference checks.

Employees worry that former employers will cause damage to their reputation and make it difficult to obtain gainful employment.

Employers want to protect themselves from liability to former employees, and employees want assurances that former employers will not interfere with their ability to seek, obtain or even maintain employment.

When employees receive references from former employers that negatively impact their ability to obtain employment, they often turn to the courts, seeking damages from their former employers through the use of common law tort claims such as defamation, intentional infliction of emotional distress and intentional interference with contract or advantageous business relationships.

The common law provides employers with a qualified privilege to discuss former employees with prospective employers without liability.

See Linafelt v. Beverly Enterprises Florida, Inc., 745 So.2d 386 (Fla. 1st DCA 1999). In order to assert this common law privilege, employers must establish:

  • good faith
  • an interest in the subject by the speaker or a subject in which the speaker has a duty to speak
  • a corresponding interest or duty in the listener or reader
  • a proper occasion
  • publication in a proper manner.

See Thomas v. Tampa Bay Downs, Inc., 761 So.2d 401 (Fla. 2nd DCA 2000) (citing, Nodar v. Galbreath, 462 So.2d 803 (Fla. 1983)).

Even with this common law privilege, many employers still feared legal liability.

These fears led to impractical reference polices that were unhelpful to both employees/former employees and their prospective employers.

In order to provide for the free flow of information between prospective and former employers, allowing for more informed hiring decisions, in 1991 the Florida Legislature enacted Florida Statute § 768.095,

An employer who discloses information about a former employee's job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences.

For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former employer was knowingly false or deliberately misleading, was rendered with malicious purpose, or violated any civil right of the former employee protected under chapter 760.

This statute codified the common law privilege as it relates to employment references, immunizing employers from liability for disclosing information concerning a former employee to a prospective employer unless the employee could establish by clear and convincing evidence that the employer did not act in good faith.

However, the statute did not affect the flow of information between employers and prospective employers as the legislature had intended.

The continued reluctance on the part of employers or former employers to disclose information was probably due in part to the continuing belief that saying anything negative could open the door to lawsuits, where even winning is expensive.

The legislature tried again, revising the statute in 1999:

An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

The 1999 revisions clarified the employee's burden for overcoming the qualified privilege provided for by the statute.

This clarification did not change the legal analysis when the privilege is asserted, although it did strengthen the immunity provision by removing the "good faith" language.

Since 1999, employers' concern over liability for negative references has not waned. Generally, employers are still very much concerned about the possibility of lawsuits by former employees and many are still very tight mouthed when called for references.

Some employers will give positive references, but will not give detailed negative references.

What is not commonly understood by many employers, is that merely maintaining a policy of not providing detailed negative references may not keep all lawsuits at bay.

Glossing over an employee's/former employee's problem areas may trigger a different risk for employers, liability for not providing an accurate reference.

For instance, in Ciarlone, et. al. v. Allstate Insurance Co., The Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, Case No. 94-04308, a prospective employer was provided with a positive reference, a recommendation letter that had been written by the former employer.

This reference was provided even though the employee had been terminated by his former employer when it discovered that he was carrying a firearm in his briefcase.

The prospective employer hired the employee, not knowing about the employee's "true" employment history.

The employee then went on a shooting spree; killing three people and severely injuring two others.

The victims sued the former employer, as it had knowingly provided false positive information to the prospective employee.

The victims prevailed.

In light of the foregoing, the best advice the labor and employment attorney can give to employers is that if they provide anything beyond a neutral reference, they should provide accurate references.

And, in order to minimize possible liability for providing such references, employers should establish and follow a reference policy.

Employers should inform all employees of the policy, thereby letting their employees know what to expect long before employees even consider leaving their employment.

The best reference policies should:

Provide for all reference check information to be centralized;

Designate those persons that have the authority to provide references;

Make it clear to all employees that they will be subjected to discipline if they provide a reference without authority;

Discipline employees if they provide a reference without authority;

Provide training for the individuals with authority to give references;

Require a written waiver releasing the information before any reference is provided for a former employee (the telephone is dangerous as there is no way to really know who is on the other end of the line);

Require verification of the identity of the person seeking the reference;

Allow for the dissemination of only honestly held beliefs that involve the employee's job performance.

In other words, if there is a difference of opinion within the organization, provide both opinions, as there may be liability if a supervisor represents that an individual had a poor performance record where there was at least one other supervisor at the same employer who thought the employee's performance met or exceeded expectations;

Require the person with authority to provide references to review the employee's personnel file before answering any reference request;

Direct the person with authority to provide references only to answer the questions that the prospective employer asks;

Require the person with authority to provide references to document all the questions asked by a prospective employer, as well as all the information that was provided in response to those questions.

Moreover, former employers should not seek out prospective employers or current employers of their former employees and provide unsolicited information.

Neither the qualified privilege that has been provided to employers by the legislature nor the privilege provided by the common law extend to former employers who offer up information to others based on their own feeling that the information should be provided.

Disseminating such information, particularly information that does not relate to the employee's past performance, may cause negative repercussions for the former employee.

If this occurs, it is likely that the employee will seek legal intervention. Under such circumstances, the employer may have difficulty defending the former employee's claim that it acted with malicious intent:

Why else would a former employer initiate the exchange of information?

In addition, employers may find that they are statutory liable for disseminating unsolicited information.

Under the right circumstances, unsolicited negative information provided by former employers to prospective employers or current employers of a former employee may subject the former employer to liability pursuant to Florida Statute section 448.045, Wrongful combinations Against Workers.

This statute, which is not often utilized, provides:

If two or more persons shall agree, conspire, combine or confederate together for the purpose of preventing any person from procuring work in any firm or corporation, or to cause the discharge of any person from work in such firm or corporation; or if any person shall verbally by written or printed communication, threaten any injury to life, property or business of any person for the purpose of procuring the discharge or any worker in any firm or corporation, or to prevent any person from procuring work in any such firm or corporation, such persons so combining shall be deemed guilty of a misdemeanor of the first degree.

It is easy to see where a former employer who provides unsolicited information that has a negative impact on a former employee's ability to obtain or maintain employment may find itself liable under this statute.

As discussed above, although the legislature has made it more difficult for former employees to seek damages from their former employers for negative references, employers are still not absolutely immune from liability.

As a consequence, employers should still be concerned about providing references and should develop policies regulating the dissemination of information about former employees.

Moreover, such policies should prohibit the unsolicited dissemination of information about a former employee.

FOOTNOTES

  • An employer's pre-employment screening process may shield the employer from liability for negligent hiring if it includes the five requirements set forth in § 768.096, Florida Statutes:
    1. a criminal background check
    2. a reference check, where a reasonable effort is made to contact references and former employers concerning the suitability of the prospective employee for employment
    3. completion of a job application that includes questions concerning prior criminal convictions
    4. a driver's license check, if such check is relevant to work the employee will be performing and if the record and be reasonably obtained
    5. an interview
  • An intentional, reckless or negligent publication of a false and defamatory statement to a third party. See Anthony Distributors, Inc., v. Miller Brewing Co., 941 F.Supp. 1567 (M.D. Fla. 1996).

    In order to prevail in a defamation lawsuit, the employee/former employee must be able to prove special damages, such as the loss of something having economic or pecuniary value, resulting from the alleged statements or that the statements were defamatory per se. Id at 1577.

    Generally, courts have found that false statements published to third parties accusing an employee or former employee of misconduct would have the tendency to injure an employee in her business or occupation.

  • A plaintiff must prove the following:
    1. a deliberate or reckless infliction of mental suffering by the defendant
    2. 2) the defendant's conduct was outrageous, goes beyond all bounds of decency - regarded as atrocious and otherwise intolerable in a civilized society
    3. 3) that the defendant's outrageous conduct caused the plaintiff's suffering
    4. 4) the suffering must have been severe. See Pucci v. US AIR, 940 F.Supp. 305 (M.D. Fla. 1996)
  • In order to establish a claim for tortious interference with contract, a former employee must show:
    1. the existence of a contract
    2. the former employer's knowledge of that contract
    3. the former employer's intentional interference with that contract
    4. damages resulting from the interference. See Gossard v. Aida Services, Inc., 723 So.2d 182 (Fla. 1998)
  • Similarly, in order to establish a claim for tortious interference with advantageous business relationships, a former employee must establish:
    1. the existence of a business relationship
    2. the former employer was aware of this relationship
    3. the former employer intentionally and unjustifiably interfered with the relationship; and 4) damages resulting from the interference. See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985)
  • When employers chose not to provide employment references, they are at risk of having other employers to reciprocate.
  • Florida is not the only state that is recognizing these claims. For instance in Randi v. Muroc Joint Unified School Dist., 929 P.2d 582 (Cal. Sup. Ct. 1997), an employer was held liable when a former employee, for whom it had provided an unqualified recommendation, sexually assaulted a student.

The former employer had known of the employee's past sexual improprieties.

However, in both Randi and Ciarlone, the former employer had provided an inaccurate reference.

It is difficult to predict what a court would do in such a case, if the former employer provided either a neutral reference or no reference at all former employee.

This information was published on the internet for general information only, and is not intended to substitute for the advice and guidance of your own counsel.