Looking to land a new 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 getting a job offer and receiving a rejection letter. If a former employer is giving out false or misleading information about you, it could prevent you from finding work.
Pennsylvania employers who provide reference information to prospective employers are protected from legal liability. If 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 for defamation.
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?)
Reference Laws in Pennsylvania
Pennsylvania employers may not be sued for defamation (in legal terms, they are “immune” from liability) if they provide information about an employee’s job performance to a prospective employer, at the request of the prospective employer or the employee.
The employer who gives a reference is presumed to be acting in good faith. This means that the employer has immunity from defamation lawsuits unless the employee can prove, by clear and convincing evidence, that the employer:
- knew the information was false or should have known it was false, had the employer exercised due diligence
- provided information that was deliberately misleading
- provided information that was false with reckless disregard as to whether it was true or false, or
- violated the employee’s contract, statutory, common law, or civil rights.
Getting a Reference
Some employees wish their former employers would keep quiet, but 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, Pennsylvania 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, you should consider this only if you are absolutely certain that the reference will be positive. It may be a good idea to give 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.