What do you know about Employment References?

February 17, 2009


References may be the first and last thing you think about in an employment relationship. Are employers required to provide them, and what information regarding former employees may be communicated? 

There is no statute or law requiring employers to provide references. As a result, and due to fear of providing the "wrong" information, many employers adopt a policy of providing information limited to confirming dates of employment and position(s) held. What can happen if an employer gives out "wrong" information? It could be subject to a claim of defamation, if the statement is factually false and tends to blacken the character, such as alleging criminal behavior. Or it could be claimed to constitute the tort of intentionally interfering with prospective contracts, if the information is shown to have cost the employee a job. 

But several factors limit employer liability in the employer reference area. First, employment matters are often "privileged," meaning that employer’s conduct and statements are excused because it falls within the employment context. Second, Pennsylvania law confers immunity from civil liability to an employer who discloses information about a current or former employee’s job performance to a prospective employer, unless the employer disclosed information that the employer knew was false or materially misleading, or in the exercise of due diligence should have known was false, the information was false and rendered with reckless disregard as to the truth or falsity of the information, or was information which the disclosure was prohibited by contract, civil, common law or statutory right, 42 Pa. C.S. § 8340.1.

From my experience, the best course is for employer and departing employee to understand exactly what employer will do and say about the employee in response to inquiries from third parties. If the employer has no stated policy with respect to references, a letter can be drafted by the employer or the employee so that it is clear what will be stated. In addition, the employer should have procedures in place so that information is disseminated only by a limited number of people and that only the agreed upon information is released. In most cases, it is to the benefit of both employer and employee for the employee to be gainfully employed again as soon as possible.

Employer/employee issues can sometimes be complicated even under the best of circumstances. If you have questions regarding employment references or any other employment issues, please contact an employment attorney.