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Legal Hot Water in Giving a Bad Reference

In cases where an employee’s contract was terminated for performance issues, it is unlikely HR would then provide a positive reference when contacted by any future employers. Yet, according to one workplace lawyer, providing a so-called ‘kiss-of-death’ style reference may be a ticket to legal hot water, including possible accusations of defamation, misrepresentation or an invasion of privacy. “Intentionally providing inaccurate information about someone or withholding critical information about an employee could land you in trouble with a claim for misrepresentation from the new employer with the potential to seek compensation for damages,” Peter Ferraro, senior associate for Harmers Workplace Lawyers said. Ferraro recommends that if employers or HR are going to provide a reference, stick to the basic facts. In cases where HR may wish to provide a character reference, it should be done cautiously as there is potential to be held liable for defamation if an unfavorable reference meant someone didn’t get a job. As a general rule of thumb, if in doubt, don’t provide a written reference.

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