If you are engaged in a job search, you may be concerned about what your former employer will say to companies that ask for a reference. References can 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.
In Oregon, employers who provide 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. 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.
IN a defamation case, 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?)
An employer in Oregon is immune from liability (that is, the employer may not be sued for defamation) if it provides information about an employee’s job performance to a prospective employer, at the request of the prospective employer or the employee.
The employer who gives a reference is presumed to be acting in good faith. This means that the employer has immunity from lawsuits unless the employee can prove that the employer:
Oregon law includes an additional twist that protects employers. To prove defamation, an employer has to prove (among other things) that the employer “published” the negative information. This means simply that the employer must have communicated the information to someone else.
Some states allow employees to claim defamation based on “self-publication.” Under this theory, employees can prove defamation by claiming that they had to repeat their former employers' defamatory statements about themselves, when asked by prospective employers to explain why they were fired. Oregon has explicitly taken this argument away from employees. Oregon’s immunity statute says that employees may not sue for defamation based on self-publication.
Some employees wish their former employers would keep quiet, 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, Oregon does not 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.