If you’ve lost your 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 Florida, as in most states, employers are protected from liability for certain types of information they provide to prospective employers. 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.
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?)
A Florida employer may provide reference information to a prospective employer, upon request of the employee or the prospective employer, without fear of legal liability. An employer is subject to a lawsuit by the employee for defamation only if it knowingly provides false information or it violates the employee's civil rights.
In addition to the general rule described above, more specific rules apply to certain industries. Anyone who provides information to an employing bank or financial institution regarding an employee's or former employee's violation of any law, rule, or regulation, which has been reported to state or federal authorities, may not be held legally liable. Such a person is subject to a lawsuit by the employee only if the information is false and the person provided it with reckless disregard for the truth.
Under Florida law, certain employers are required to run background checks on applicants who will work with children and vulnerable adults. If such a background check turns up particular criminal offenses or misconduct, the applicant is disqualified. To facilitate this process, Florida law gives employers who supply information to prospective employers for the purpose of such a background check immunity from civil lawsuits by the employee. The information an employer may provide includes, but is not limited to, the reasons for the employee's termination and information on disciplinary matters. An employer providing this type of information may be held legally liable only if it maliciously falsifies the employee's records.
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. Florida doesn't have a service letter law, however.
If you want a former employer to provide more detailed information than the law requires, 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.