When a prospective employer contacts a potential employee’s former employer for a job reference, what liability does the former employer potentially face when responding? And is it prudent for a former employer to create potential liability issues by commenting on a former employee?
Prior to 1990, employers had a common law qualified privilege to discuss former employees with prospective employers without liability. Thereafter the Florida Legislature enacted Florida Statutes section 768.095, which is the Legislature’s codification of the common law. The statute provides that:
An employer who discloses information about a former employee’s job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former employer was knowingly false or deliberately misleading, was rendered with malicious purpose, or violated any civil right or the former employee protected under chapter 760.
The statute is an affirmative defense, so a former employee must first demonstrate the basic elements of a defamation case, i.e., a false and defamatory statement about another. As one Florida appellate court explained, “[a] defamatory statement is one that tends to harm someone’s reputation in the community to deter others from associating with that person.” Thomas v. Jacksonville Television, Inc., 699 So.2d 800, 803 (Fla. 1st DCA 1997). If a statement is both false and defamatory, then the employee must also show by clear and convincing evidence that the employer’s statement to the prospective employer was “knowingly false,” “deliberately misleading,” or “rendered with a malicious purpose.”
Even if an employer defeats a defamation claim, it still could be sued for tortious interference with an advantageous business relationship. The elements of the tort of intentional interference with an advantageous business relationship are (1) the existence of a business relationship not necessarily evidenced by an enforceable contract, (2) the knowledge of the relationship on the part of the defendant, (3) an intentional and unjustified interference with that relationship by the defendant, and (4) damage to the plaintiff as the result of the breach of that relationship. In other words, even if a job reference does not rise to the level of a defamatory statement, it might constitute tortious interference with an advantageous business relationship. A recent appellate court decision addressed this issue.
Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386 (Fla. 1st DCA 1999), concluded there was no defamation when a former employer spoke negatively about the plaintiff’s job performance because the evidence demonstrated that the former employer did not make any false statements. However, the appellate court in Linafelt allowed the employee to have another jury trial on the issue of tortious interference with an advantageous business relationship. The appellate court suggested there was enough evidence for a reasonable jury to find the employer made a deliberately misleading or malicious statement about the former employee, even though the statement was “technically true.”
Due to the potential for costly lawsuits pertaining to job references, many employers decide the most prudent course is simply to disclose the former employee’s dates of employment and last position held, with no further comment. While the employer could succeed in defense against a lawsuit asserting defamation or tortious interference with an advantageous business relationship, it is often more prudent to avoid the potential lawsuit altogether. There are times, however, when moral reasons dictate that one should warn a prospective employer if the former employer is asked for a reference. That of course is within the discretion and judgment of the business owner.
Peter T. Mavrick represents business owners in labor/employment and business litigation. Mr. Mavrick has successfully represented many businesses in negotiations, in response to threatened legal action, and in court. This article is intended for information purposes only and is not legal advice. This article is not a substitute for legal advice tailored to a particular client’s situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: firstname.lastname@example.org.