If you are looking for a new job, 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 Massachusetts, employers who provide reference information to prospective employers are protected from legal liability, in some situations. 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.
How References Can Lead to Defamation Claims
In a defamation case, 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?)
Massachusetts Laws on References
Most states that protect employers from liability for defamation based on a reference do so explicitly, in a state statute. In Massachusetts, however, statutory protection is provided only for employing hospitals, convalescent or nursing homes, home health agencies, and hospice providers. These employers are immune from liability (that is, they may not be sued) for providing reference information about current or former employees, including the employee’s employment history and reasons for termination.
An employer that is otherwise protected by this statute can lose that immunity if the information it disclosed was false and the employer knew that it was false.
Other employers may be protected by Massachusetts case law, in some situations. Massachusetts courts have held that employers who provide reference information may be protected by a conditional privilege. If a conditional privilege applies, the employer may not be sued unless it acts with malice, discloses the information recklessly, or provides the information with reckless disregard as to whether it is true or false.
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, there is no service letter law in Massachusetts.
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.