NCPA - National Center for Policy Analysis

Employers Fear Litigation Over Negative References

March 23, 2004

Businesses and governments are reticent to give negative information about former employees, says USA Today. Fearing defamation suits, most firms provide only dates of employment and job titles during reference checks. In fact, lawyers advise them to say as little as possible -- even about workers who have been fired and when they suspect a worker could expose others to avoidable risks.

When employers check resumes carefully, they often find false information, notes the Society for Human Resource Management. It says good employees suffer, too, because many firms also are reluctant to give positive references.

Though half the states offer some safety to employers who provide honest references, the laws don't discourage frivolous defamation lawsuits. Dangerous silence is encouraged by:

  • State laws barring government agencies from revealing complaints that haven't resulted in disciplinary actions.
  • Laws that strictly limit what employers can ask applicants, including about arrests.
  • Weak shield laws that don't protect employers who give honest references against the legal costs of defending themselves.

"Righting that imbalance requires stronger state laws so vital records can be shared," concludes USA Today, "particularly for positions that affect public safety. Placing the burden on employees to prove that a reference was false and done with malice would deter frivolous cases."

Source: Editorial, "How dangerous employees continue to get new jobs," USA Today, March 23, 2004.

For USA Today text


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