Employment References: Some Things Are Better Left Unsaid
September 9, 2015
It is no secret that most employers desire job applicants with employment histories that are, let’s say, not out of the ordinary. Of course, job seekers may be concerned that upon an inquiry from a prospective employer, a former employer may furnish negative information that will derail the new job opportunity.
Is an employer at liberty to provide negative and/or disparaging information about a former employee to a prospective employer? Under Florida law, an employer is statutorily protected from claims premised upon an unfavorable job reference unless, upon a showing of clear and convincing evidence, the information provided was knowingly false or the disclosure otherwise violated the subject employee’s civil rights.
The conventional wisdom (which I believe I can safely say is espoused by most employment lawyers) is for an employer to provide only a former employee’s dates of employment and position(s) held. Why? Typically speaking, a prior employer has no incentive to provide additional information. In fact, there is a greater risk of harm to the former employer by divulging more specifics than necessary. An employer may expose itself to a possible statutory employment claim if, for example, it is alleged that negative information, even if truthful, was disclosed to a prospective employer in retaliation for protected activity (e.g. the filing of an EEOC charge or an internal complaint of sexual harassment). Bottom line, unless the law otherwise compels broader disclosure, employers are best advised to follow the conventional wisdom with regard to inquiries about former employees.