If you’ve lost your job, 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.
Kansas, like most states, provides legal protection for employers who provide certain kinds of information to prospective employers who ask for a reference. But 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.
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?)
In Kansas, an employer is immune from liability (that is, the employer may not be sued) for providing certain types of information about a current or former employee, upon the request of the employee or a prospective employer. The rules depend on how the information is provided and what information is provided.
An employer who responds in writing to a written request from a prospective employer has absolute immunity from lawsuits for providing:
This information must also be made available to the employee on request.
Absolute immunity means the employer may not be sued for defamation under any circumstances, as long as it provides only the information set out in the statute.
An employer also has absolute immunity for providing the following types of information, whether in writing or orally:
An employer that doesn’t limit itself to this list of information enjoys only qualified immunity for providing a reference. In Kansas, an employer that has qualified immunity may not be sued for defamation unless it acts with malice in providing the information. (Typically, malice is defined as providing the information knowing that it is false, and with the intent to cause the employee harm.)
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.
Kansas is one of a handful of states that has a service letter law. If a terminated employee makes a written request, the employer must provide a service letter stating the employee’s:
If you want a former employer to provide more information than required by the service letter law, 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.