Employment References: Walking Scared between the Minefield of Defamation and the Specter of Negligent Hiring

Abstract

In present day reference checking, many of the same organizations that seek as much information as possible about people they wish to hire resist giving out more than a bare minimum of information to other organizations. The strongest force driving this minimal reference information release is fear of legal action taken because of something said about an individual (defamation, supposedly). Many employers appear so frightened of being sued for libel or slander that they share nothing of substance, usually not realizing that in trying to protect themselves against defamation charges they are increasing their legal risk associated with negligent hiring charges. However, truthful reference information can be provided with minimal risk if it is provided in good faith, given only to someone who has a legitimate need to know, is related strictly to job in character, and is not communicated maliciously. Also, reference always must be answered completely objectively with information verifiable in the individual's personnel file.