Are you searching for a job in Vermont? If so, you may be asked to provide the names of former employers who are willing to act as a reference. A good reference can make the difference between getting a job offer and getting a rejection letter. If a former employer is giving out false or misleading information about you, you might find it tough to get hired.
Like most other states, Vermont gives legal protection to employers who provide certain types of reference information to prospective employers. 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.
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 employment context, defamation claims almost always center 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?)
Vermont’s statutory protection for employers who give references is limited. The law protects employers only if they provide reference information to a prospective employer whose employees are in a position of authority, power, or supervision over a minor or vulnerable adult, or who will have regular, unsupervised contact with a minor or vulnerable adult. The law applies to both for profit and nonprofit employers, but only if they serve these vulnerable populations.
Employers may not be sued for defamation (in legal terms, they are “immune” from liability) if they provide information in good faith to a covered prospective employer about an employee’s job performance. In this context, job performance includes the employee’s:
If the employer provides this information in writing, it must give a copy to the employee.
An employer who provides this information is protected from defamation claims brought by the employee, unless:
Although some employees wish their former employers would keep their mouths shut, 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, Vermont doesn’t have a service letter law.
If you want a former employer to provide a more 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.