If you are looking for a job, you may be concerned about what your former employer will say when called as a reference. References can help you land a great new job – or virtually guarantee that you receive a rejection letter. If a former employer is giving out false or misleading information about you, it could doom your job search.
New York is one of the few states that doesn't have any statutes specifically regarding references. Most states have passed laws giving employers legal immunity from defamation lawsuits – in other words, the employer is not subject to liability and cannot be sued -- for information they provide to prospective employers, as long as the employer speaks honestly and doesn't go beyond the specific types of information laid out in the statute. (To learn more about defamation claims, see Defamation Lawsuits: Do You Have a Case Against a Former Employer?) New York doesn't offer this kind of protection, however, which means that employers in New York aren't statutorily protected from defamation claims.
Generally speaking, an employee must show all of the following to win a defamation claim based on a reference:
- The employer made a false statement of fact about the employee. You may not sue an employer for making truthful statements, no matter how damaging they may be. Because statements of opinion can't really be proven true or false, they generally aren't enough to support a defamation claim.
- The employer "published" the statement. This simply means that the employer said it to someone, orally or in writing.
- The employer knew or should have known that the statement was false. If the employer speaks in good faith, believing that the statement is true, the employer hasn’t defamed the employee.
- The statement was not privileged. As mentioned above, many states have laws that provide immunity for employers who provide reference information. These are sometimes called "privilege" laws, because their purpose is to protect people who make certain types of statements from liability, in order to ensure candor in certain relationships and transactions (such as the marital relationship or the relationship between doctor and patient). However, New York does not have a statute providing this type of protection.
- The statement caused damage. Typically, an employee claims that he or she didn't get a job because of the employer's false reference information.
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. Some employers are so fearful of defamation claims that they have a blanket policy of refusing to give a reference, beyond such basic information as the dates of the employee’s service and the positions the employee held.
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. New York is not one of the handful of states that has a service letter law, however.
If you want a former employer to provide a comprehensive reference, you might consider signing a release: an agreement giving the employer your consent 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.
You should consider a release 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.