Although it was far simpler twenty years ago to provide references for most departing and former employees, it now requires careful planning. Employers must take deliberate steps to protect themselves against possible lawsuits brought by disgruntled former employees who may claim that they’ve been harmed by defamatory or negative job references.
All companies should now consider requesting (as a hiring condition) that each new employee sign a release form granting permission for the company to provide future job references without threat of liability. As noted below, that paperwork can then be supplemented by new, signed and dated authorization forms for each future reference requested.
Before sharing ten ways your company can reduce its potential liability when providing job references, this article will first briefly review common legal arguments advanced by former employees when they sometimes sue claiming a reference harmed their future job prospects.
Types of arguments past employees advance when alleging harm due to a job reference
Keep in mind that defamation does not have to produce actual harm – it’s enough that the negative reference was published or communicated to a third party and might reflect poorly on a past employee’s good name or overall reputation. Courts will normally review all the surrounding circumstances to determine whether a reference was truly damaging.
Can you be sued for negligent referral, fraud or misrepresentation due to your reference?
Those types of lawsuits are becoming more common. If you had knowledge that a past employee behaved violently in your workplace, made serious verbal or physical threats against others – or sexually harassed one or more workers, you might need to disclose some of that information. This is a topic you must discuss in much greater detail with your Houston employment law attorney since Texas law may or may not provide you with adequate protection from liability.
If you’re uncertain how to provide a reference for a past or departing employee, please feel free to contact one of our Murray Lobb attorneys. We can provide you with sound legal advice regarding such topics. Our firm can also help you create employee release and authorization forms. Should you be sued by a former employee, we’ll be available to defend you through every stage of any proceeding.
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