Are you looking for a new job in North Dakota? If so, you may be concerned about what your former employer will say to companies that call to ask for information about you. 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 North Dakota, 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.
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?)
A North Dakota employer is immune from liability (that is, the employer may not be sued) for providing information to a prospective employer about an employee’s:
An employer who gives only this information cannot be sued unless the employer provided it in violation of a nondisclosure agreement or the information was otherwise required to be kept confidential under the law.
An employer who goes beyond these basic facts and discloses information about the employee’s job performance has qualified immunity from defamation lawsuits. The employer is presumed to be acting in good faith when providing this type of reference, and can be sued only if the employee can prove that the information provided was:
As with the more barebones reference, an employer can also be sued for providing more detailed information, if the disclosure violates the law or a nondisclosure agreement.
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. North Dakota does not have a service letter law, however.
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.