Are you looking for a job in South Carolina? If so, you may be concerned about what your former employer will say to companies that call and ask for information about you. 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 doom your job search.
South Carolina employers provide certain types of reference information to prospective employers are protected from legal liability. 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. But if a former employer lies, 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?)
Reference Laws in South Carolina
South Carolina employers may not be sued for defamation (in legal terms, they are “immune” from liability) if they provide certain information about an employee to a prospective employer. Employers have immunity when they supply only the dates of employment, pay level, and wage history to prospective employers.
In addition, an employer may not be sued for providing the following types of information, in writing, in response to a prospective employer’s written request:
- the employee’s written performance evaluations
- official personnel documents that state the reasons for the employee’s termination
- whether the employment relationship was terminated voluntarily or involuntarily, and the reasons for that termination, and
- information about the employee’s job performance, including attendance, attitudes, awards, demotions, duties, effort, evaluation, knowledge, skills, promotions, and disciplinary actions.
The employer must give the employee access to any written information it provides to a prospective employer.
An employer who provides only this information, in writing, has immunity from defamation lawsuits unless the employee can prove that the employer knowingly or recklessly provided false information.
Getting a Reference
Some employees wish their former employers would keep their mouths shut, 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, South Carolina doesn’t 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.