When individuals are searching for a job, potential employers may ask them for references from past employers. For many applicants, this is a great chance to showcase past performances with glowing reviews from former employers. However, what happens if an old boss was unhappy with their work? Can that former employer be liable for furnishing negative information about the applicant?
Most states offer guidance on this question and have statutes that specifically protect former employers from defamation claims for giving negative references. New York, however, is one of just a handful of states that does not have such a statute. While this means that employers do not have as great of protection as they might in other states, it does not mean they are without rights. In fact, most employers can safely offer a negative reference as long as they stick with the facts and offer truthful accounts of the applicants past performance.
In order for a former employer to successfully bring a claim for defamation based on a reference, he or she must meet several requirements. First, he or she must show that the former employer made a false statement about the applicant. Just because a reference was negative does not mean it was untrue. Generally, statements of opinion are not considered false and claimants have a difficult time proving them as such.
Even if an employer does furnish false information to a potential employer, he or she may not be on the hook for defamation. If the employer did not know or should not have known that the information was false, he or she is protected from a defamation claim.
Further, a person has to show that the false claim actually caused him or her damage. For references, this means that he or she must show that the potential employer did not hire him or her as a direct result of the negative (and false) reference.
Both employers and employees have rights when it comes to references. If you have a question about a negative reference, meet with the respected New York employment discrimination attorneys at Derek Smith Law Group, PLLC.
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