Are you looking for a job? 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 receiving a job offer and receiving a rejection letter. If a former employer is giving out false or misleading information about you, it could doom your job search.
Maryland, like most states, protects employers who provide reference information to prospective employers. 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.
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 and 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?)
Maryland Laws on References
A Maryland 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. The employer may provide information about the employee’s job performance and reasons for termination, if the information is requested by a prospective employer or the current or former employee.
The employer may also provide this information to a federal, state, or industry regulatory authority if the authority requests or requires the information, or if the information is disclosed in a report or other legally required document.
However, an employer is immune from lawsuits only if it acts in good faith. The employee can still sue the employer for defamation if the employee shows, by clear and convincing evidence, that the employer did not act in good faith. To prove lack of good faith, the employee must show that the employer:
- acted with actual malice toward the employee (that is, the employer had an intent to harm the employee), or
- intentionally or recklessly disclosed false information.
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. However, Maryland does not have a service letter law.
If you want a former employer to provide a detailed reference, 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.