Are you looking for a job in Nevada? 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 Nevada, employers who provide reference information to prospective employers are protected from legal liability, in some situations. As long as the employer acts in good faith and doesn’t go beyond what the law allows, the employer can’t be sued for defamation. 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?)
Nevada Law on References
A Nevada employer is immune from liability (that is, the employer may not be sued) for providing certain types of information to a prospective employer about a current or former employee, at the employee’s request.
The employer has legal immunity for providing information about:
- the employee’s ability to perform the job
- the employee’s diligence, skill, or reliability in carrying out the job’s duties, or
- any illegal act or wrong the employee committed.
However, the employer loses this immunity (and can, therefore, be sued for defamation) if the employee can prove that the employer:
- acted with malice or ill will
- disclosed information that the employer believed was inaccurate or had no reasonable grounds to believe was accurate
- recklessly or intentionally disclosed inaccurate information
- intentionally disclosed misleading information, or
- disclosed information in violation of federal or state law or in violation of an agreement with the employee.
Nevada Service Letter Law
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. Nevada is one of the few states that has a service letter law.
Upon the request of an employee who has worked at least 60 days for the employer, a Nevada employer must provide a letter stating the reasons why the employee was discharged or quit and any meritorious service the employee performed.
Getting a Reference
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.