Are you looking for a job in Arkansas? If so, you may be concerned about what your former employer will say about you when prospective employers call for a reference. References can be the deciding factor in whether you get a job offer or a rejection letter. If a former employer is giving out false or misleading information about you, it could doom your job search.
In Arkansas, as in most states, employers are protected from liability for certain types of information they provide to prospective employers. However, if a former employer acts maliciously or otherwise crosses the legal line, and you lose job opportunities because of it, you may have a legal claim.
Defamation and References
To prove defamation, the plaintiff (the person bringing the lawsuit) must show that someone made false and damaging statements about him or her. In the context of employment, defamation claims almost always center on statements the employer makes about the employee once the employment relationship ends. Typically, a former employee claims that the employer made false, negative statements about the employee’s performance to a prospective employer who called for a reference, and the prospective employer decided not to offer the employee a job (or to rescind a job offer) because of the poor reference. (To learn more about defamation claims, see Defamation Lawsuits: Do You Have a Case Against a Former Employer?)
Arkansas Law on References
Arkansas law provides detailed instructions for employers who want to avoid liability when providing references. Employers who meet the legal requirements have immunity from defamation lawsuits (that is, they can't be sued for defamation based on the information they provide).
Written Consent Required
To avoid legal liability for statements made in a reference, the employer must have written consent from the employee. The consent is valid only if it meets all of these requirements:
- It must be on a form separate from the application form or, if part of the application form, it must appear in bold letters and in a larger typeface than the rest of the form.
- It must say something similar to this: "I, [name of employee] hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to [prospective employer]."
- It must be signed and dated by the employee.
- It is valid and effective only for as long as the employer considers the employee's application to be active, but no longer than six months.
As you can see from this description, the Arkansas statute presumes that it will be the prospective employer who gets the employee's consent. Presumably, the prospective employer then provides this consent form to former employers when seeking a reference.
Information Employers May Provide
The employer providing the reference will be presumed to be acting in good faith -- and therefore be immune from lawsuits for defamation based on the reference provided -- if it sticks to the following information only:
- dates and duration of employment
- current pay rate and pay history
- job description and job duties
- last written performance evaluation
- attendance information
- results of drug or alcohol tests administered within one year before the request
- threats of violence, harassing acts, or threatening conduct toward another employee or related to the workplace
- the reasons for termination, including whether it was voluntary or involuntary, and
- whether the employee is eligible for rehire.
When There's No Presumption of Good Faith
An employer who gets the employee's written consent and provides information only on the topics listed above is presumed to act in good faith, which means the employer is immune from liability for defamation. However, the employer can lose this protection if it knowingly provides false information about the employee or it provides information with reckless disregard for whether it is true or false. Employers are also not protected from lawsuits if they act with the intent to discriminate or retaliate against an employee for exercising a federal or state right or for acting in accordance with the public policy of the state. In any of these situations, the employee may still have the right to sue for a damaging reference, depending on the circumstances.
Getting a Reference
While some employees wish their former employers would keep quiet, some employees face the opposite problem: They want a former employer to give a reference, but the employer isn't willing to speak up. Some employers are so fearful of defamation claims that they won't give references under any circumstances. And, Arkansas law doesn't require employers to give any information about employees. It says only that employers who choose to give a reference can avoid liability by following the rules laid out above.
To help employees who need to get information from reluctant employers, some states have enacted service letter laws. These laws require employers to provide former employees with certain basic information, in writing, about their employment. However, Arkansas law doesn't require employers to provide a service letter.
If you want a former employer to provide more detailed information that the law requires, you might consider signing a release: an agreement giving the employer permission to respond to prospective employers who call for a reference, and giving up your right to sue the employer for anything said as part of that process.
However, this makes sense only if you are absolutely certain that the reference will be positive. It may be worth giving up your legal right to sue in exchange for a reference that will help you land a position, but you don’t want to sign away your rights only to find that you have no recourse against a former employer who damaged your reputation and job prospects. For more information, see Getting Good Job References. For information on your legal rights during the hiring process, see Nolo's articles on Getting Hired.