Are you looking for a job in Colorado? If so, you may be concerned about what your former employer will say to companies that ask for a reference. References often make the difference between landing a new job and receiving a rejection letter. If a former employer is giving out false or misleading information about you, it could doom your job search.
In Colorado, 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.
References and Defamation Claims
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 nearly always focus 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?)
Colorado Law on References
In Colorado, an employer may provide certain reference information to a prospective employer, upon request of the employee or the prospective employer, without fear of legal liability. An employer may provide information on:
- the employee's job history, and
- the employee's job performance, which includes work-related skills, abilities, and habits; suitability for reemployment; and reasons for separation.
The employer is not immune from legal liability if the information it provides is false and the employer knew or reasonably should have known that it was false.
If an employer provides any written information about an employee (for example, a written reference), the employer must send a copy to the employee's last known address, if the employee requests it. The employee may also pick up a copy of the reference information at the employer's business office, during regular business hours. For multiple copies, the employee may have to pay copying costs.
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 provide information, 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.
To remedy this situation, some states have enacted service letter laws. These laws require employers to provide former employees with certain basic information, in writing, about their employment. Although former employees are entitled to receive a copy of any written information the employer provides about them, as discussed above, Colorado law doesn't affirmatively require employers to put this information in writing in the first place.
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.