You’re Damned if You Give a Negative Reference

Posted: November 8, 2012 in Lawsuits

Many employment lawyers tell their corporate clients to provide only basic information when giving a job reference.  That is, to just verify dates of employment and the position held, and nothing more.  Employers invariably think we are being too cautious.  But there is recent proof that saying too much can not only get your company sued, you can end up paying significant damages as well.  The case is reported as Timothy J. O’Brien v. Mark L. Chretien et al, (unpublished, MA Appeals Court).  From my reading of the case, the plaintiff actually sued a party who was not his employer, but was related to the plaintiff’s employment. In any event, the cautionary tale is one for Massachusetts employers.

The plaintiff, represented by Jeremia Pollard of Hannon Lerner, P.C. in Lee, MA, worked as a paramedic.  The appeals court determined that the evidence was sufficient for a jury to find that Berkshire Medical Center, Inc. (“BMC”) told the plaintiff’s potential employer that the plaintiff had lost his medical clearance and that a “no trespass” order had been issued against the plaintiff.  There was no evidence presented that there was truth in these statements, the Appeals Court found.  The defendant denied making these statements, but because the statements were oral, the jury apparently believed the testimony and notes of the person who heard the comments and passed them on to the potential employer.  Because of the statements made by BMC, the plaintiff was bypassed for a municipal job even though he was better qualified.

The plaintiff prevailed at trial on claims of defamation and interference with his prospective business relationship.  The Appeals Court upheld the ruling.  My research indicates that the plaintiff won $204,000 at trial.  With interest, this figure is well over $300,000.  That’s not including BMC’s own legal fees, which would likely put the total exposure north of $400,000.

There are a few ways that an employer could potentially avoid this exposure.  For one, they could follow their standard advice and provide only the dates of employment and job position held.  For another, the employer could ask the former employee for a complete waiver to allow them to speak honestly.  There is no guaranty that such a waiver would hold up, but I do not see why it wouldn’t.  Third, the employer could provide any reference in a carefully-vetted (by an attorney) written correspondence, to make sure that it is not subject to a defamatory interpretation.  In the case set forth above, BMC was in the position of defending a he said-he said situation, which put it at the mercy of the jury.

If your company needs guidance on providing a reference, give me a call at 617.338.7000.

By Adam P. Whitney

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Comments
  1. Mac says:

    Recent practice has also included answering the question “Would you hire this person again?” So much for that. If you say you wouldn’t, then the next question is “Why?” If you won’t answer that one, it constitutes a bad reference for the former employee.
    A couple of companies I have worked for will give no information beyond the first and the last dates of employment.
    Perhaps the best will be to refuse to acknowledge anything about employees, current or former, without a court order threatening contempt. Cite confidentiality and privacy?

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