Are you looking for a job in Virginia? During your job search, 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, your job search might be doomed.
Like most other states, Virginia law provides some legal protections for employers who give references. 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. 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.
How References Lead to Defamation Lawsuits
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?)
Virginia Reference Laws
Virginia employers have some statutory protection against defamation lawsuits based on references. Employers may not be sued for defamation (in legal terms, they are “immune” from liability) if they provide information about an employee, in good faith, to a prospective employer. The employer may provide information about:
- the employee’s professional conduct, including the ethical standards governing the employee’s profession or the standards of conduct imposed by the employer
- the employee’s job performance, including ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity, and discipline, and
- the reasons for the employee’s separation from employment.
An employer who provides this information is presumed, legally, to be acting in good faith. This means that the employee may not sue for defamation unless the employee can prove, by clear and convincing evidence, that the employer provided the information:
- knowing that it was false
- with reckless disregard for its truth or falsity, or
- with the intent to mislead.
Getting a Reference
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. Virginia doesn’t have a service letter law, however.
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.