Is a Bad Reference Defamation? | Employment and Labor Law

Can You Be Liable for Defamation for Giving a Bad Reference in California?

Employment and Labor Law | As an employer, you may be occasionally called upon to act as a reference for a former employee. While this may be a role to which you happily agree when the former employee was one with whom it was a pleasure to work, sometimes a prospective employer will call you up to inquire about an employee who was not so wonderful. In those cases, what kind of information can you safely disclose without worrying about being accused of defamation?

California, as in several other states, allows former employers to give certain types of information to prospective employees, even if that information is negative. This information can include details about the employee’s work performance, qualifications and eligibility for rehire. The key here is that this information is not false or malicious. This can be a difficult line to judge, but former employers would be well advised to “stick with the facts,” so to speak, and refrain from making personal statements about the employee. For instance, if the employee had a personality that made it difficult to work with him or her, the employer should state that the employee did not get along with others rather than that the employee was rude or had a terrible personality. In many ways, these statements are shades of the same truth, but one is a more objective version than the others.

Sometimes employers will be tempted to avoid toeing this line altogether and will give a glowing report about any employee, even if he or she was not a model worker. However, California courts do subject employers to liability for failing to disclose enough information about an employee, especially if that information could subject the new employer to liability.

Giving references is a regular part of an employer’s role, but should be undertaken carefully. If you have any questions about this or any other area of employment law, contact the Bakersfield attorneys at Young Wooldridge, LLP. The employment and labor law attorneys at Young Wooldridge, LLP can inform you of legal options you may not know you have. 

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