Thursday, October 29, 2015

It’s not illegal to give a negative job reference, but…


When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

Ohio Revised Code 4113.71 creates a privilege for employers to provide information about the job performance of a former employee to a prospective employer of that employee.

An employer who is requested by an employee or a prospective employer of an employee to disclose to a prospective employer of that employee information pertaining to the job performance of that employee for the employer and who discloses the requested information to the prospective employer is not liable in damages in a civil action to that employee, the prospective employer, or any other person for any harm sustained as a proximate result of making the disclosure or of any information disclosed, unless the plaintiff in … establishes … (1) … that the employer disclosed particular information with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose; or (2) … that the disclosure of particular information by the employer constitutes an unlawful discriminatory practice….

So, if the practice of providing a truthful, non-malicious, good faith, non-discriminatory negative reference is perfectly legal, why are so many employers wary of doing it? Consider Kienow v. Cincinnati Children’s Hosp. Med. Ctr. (Ohio Ct. App. 10/23/15).

Kienow concerned a former employee of Cincinnati Children’s who failed to get hired by a new employer because of a negative reference she received from her former supervisor. She sued, claiming defamation and tortious interference with her employment. She lost the defamation claim because she brought it too late, but the tortious interference claim survived despite 4113.71.

Cincinnati Children’s maintains that Kienow’s complaint did not plead facts to overcome the statutory privilege. But it is not obvious on the face of the complaint that the privilege applied: there was no allegation that Dayton Children’s “requested” information from Cincinnati Children's or Morris.

In other words, because Kienow argued that her supervisor at Cincinnati Children’s reached out to her prospective employer without first being asked for the reference, 4113.71 might not apply.hat

What does all this mean? It means that even though employers hold a legal privilege to provided a negative reference, the associated transactional costs from potential litigation (no matter how unlikely for an employer to lose) is enough of a deterrent such that negative job references are almost non-existent.

Can you provide a negative references on a marginal ex-employee? Absolutely. Should you? That depends on your tolerance for the potential of litigation, and your belief that people deserve a second chance elsewhere.

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