- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
Defamation Claims from Former EmployeesBy: Allison Mann
Reference checks are one tool many employers use in the hiring process. However, the situation can get legally complicated when you, as an employer, are formally asked to give a reference by a potential new employer. As it oftentimes happens, you may not want to give that employee a glowing reference. In addition, trouble arises when an employer informally speaks negatively about an employee. Defamation claims are probably the most commonly seen consequence, but it is not uncommon for retaliation or discrimination claims to also arise out of these instances. The scope of this article is limited to defamation.
Employer Protections:Employers are not without protection from defamation claims. The North Dakota legislature has taken steps to immunize North Dakota employers against potential frivolous lawsuits from spurned former employees. North Dakota Century Code § 34-02-18 provides two levels of protection.
First, it specifies information that an employer may disclose truthfully without fear of reprisal, including date of employment, pay level, job description and duties, and wage history. This exception is fairly straightforward.
Second, it grants immunity to an employer for the disclosure of information relating to a current or former employee’s job performance to a prospective employer. In order to qualify for this immunity, the employer must be disclosing the information in good faith. This gets a little trickier to evaluate. An employee may assert that an employer is not acting in good faith by presenting evidence that the information disclosed was:
A Case Study: Forster v. W. Dakota Veterinary Clinic, Inc.In this case, the plaintiff worked as a vet tech for the employer, but parted employment on less than pleasant terms. The employer accused the plaintiff of theft and animal abuse, and reported it to local authorities. No charges were ever brought against the plaintiff.
Plaintiff attended a state meeting of veterinarians in search of a new job. Her former employer was also at the meeting, and spoke negatively about the plaintiff to several potential employers. She stated: (1) that the plaintiff had broken into her clinic; (2) that she stole medication; and (3) that she poisoned the employer’s horse. None of those potential employers hired the plaintiff. In addition, the employer made several comments of the same nature to individuals in the industry outside of the conference.
Thereafter, plaintiff brought defamation claims against her former employer, in conjunction with a wrongful termination claim. The court determined that the employer was not eligible for immunity applicable to job references because the employer was not asked to give the reference, but volunteered the information without prompting. Ultimately, the court upheld the jury’s $160,000 award plus attorneys’ fees for the employer’s defamatory statements.
The Takeaway:As is seen above, speaking about former employees can put your business at risk. However, the potential new employers are not going to stop checking references, and it is a resource in the hiring process. As the Forster case demonstrates, employers should have a plan or policy in place regarding formal references and more informal conversations about former employees. The following general guidelines provide potential starting points for crafting that plan:
Our Interest in Serving You:My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at firstname.lastname@example.org. We promise to take your comments and ideas to heart.
(Otherwise known as “the fine print”)
Reprinted with permission from an article submitted for publication in the February, 2017 Southwest Area Human Resource Association newsletter.