Writing a reference letter for a former employee is a veritable minefield of legal jeopardy. Consider the following scenarios and the potential liability created by each situation.

An employer writes a reference letter that includes false written statements that harm the reputation of the former employee.

DEFAMATION?

An employer writes a negative reference letter for a former $$whistleblower$$ employee who publicized the company$$s wrongdoing.

RETALIATION?

An employer writes a positive reference letter for one former employee but refrains from doing so for another former employee.

DISCRIMINATION?

An employer writes a reference letter and discloses confidential facts about the former employee.

INVASION OF PRIVACY?

An employer writes a negative reference letter that results in the former employee losing a job offer for future employment.

INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS?

An employer writes a positive reference letter for an employee who has a history of misdeeds within the company and is a foreseeable risk to others.

NEGLIGENT REFERRAL?

You can see why an employer might think twice about writing anything in response to a request for recommendation or reference. The legal risk could quickly outweigh any benefit to providing such information to hiring personnel. Yet, contemplate the difficulty of assessing a candidate for employment without any feedback regarding that person$$s previous job performance.

Considering this conundrum, please respond to the following questions:

$1.$ If a former employee were to sue for defamation on the basis of a negative reference letter alleging incompetence or poor performance, what might be the employer$$s BEST defense to the lawsuit and WHY? What type of evidence might the company use to defend itself?

There does exist a common$-$law qualified privilege for employers who are sued in these situations, which is intended to protect them from defamation claims and promote candid communication among businesses. Several states have also enacted legislation $($reference immunity statutes$)$ to address employers$$ liability fears and discourage frivolous lawsuits.

However, many employers lack confidence in these protections and recognize that defending a lawsuit will be time$-$consuming and costly$.$ To avoid the threat of litigation, many companies have enacted policies that limit reference information to job title and dates of employment. You can imagine how frustrating that is to future employers who are trying to gather relevant information about job candidates in an effort to make informed hiring decisions.

$2.$ Discuss reasons why these $$no comment$$ policies that provide only the most basic facts about a person$$s previous employment might be detrimental from the perspective of the employee AND the future employer.?

$3.$ There is obviously a benefit to open, honest and professional business communication that protects truth and confidentiality within the realm of hiring. What are some ideas, methods or policies that a company could implement to limit its exposure to lawsuits by aggrieved former employees?