If you are looking for a job in Michigan, you may worry about what your former employer will say to companies that call and 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.
Michigan, like most states, provides some legal protection for employers who give information about employees 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 grounds for a defamation lawsuit.
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?)
Michigan Reference Laws
A Michigan 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. An employer may provide information about the employee’s job performance that is documented in the employee’s personnel file.
An employer is presumed to be acting in good faith (and therefore, is immune from lawsuits) when it provides this performance information unless the employee can prove otherwise by showing that:
- the employer knew the information was false or misleading
- the employer disclosed the information with reckless disregard for its truth, or
- the disclosure was specifically prohibited by state or federal law.
Special rules apply to disciplinary actions, letters of reprimand, or other disciplinary reports in an employee’s personnel file. If such records are requested by anyone outside of the employer’s organization, the employer must review them and delete any that are more than four years old before handing them over. (This rule doesn’t apply – in other words, the employer need not delete older records – if the disclosure is ordered in an arbitration or a lawsuit to a party in that proceeding.)
An employer must notify the employee when it discloses disciplinary records. On the day before or the same day the employer provides these records to a third party, the employer must send a letter to the employee’s last known address, by first class mail, letting the employee know about the disclosure. However, the employer need not provide this notice if the employee waived the right to receive notice in a signed job application submitted to another employer.
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, Michigan 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.