Q. We work in a very small industry, and employees tend to circulate among various employers in our greater metropolitan area. Many of us belong to the same trade and professional organizations and know each other. We would like to be able to provide each other with honest information in response to reference checks about an employee’s work history, but everyone is reluctant to do so because the general opinion seems to be that the safer course of action is to give only names and dates of employment. Can employers provide honest information about the reasons for employment
A. This is one of those situations where we employment lawyers tend to be more conservative than the law requires.
There is, in fact, a specific statute in Ohio that grants employers immunity for giving honest information pertaining to the job performance of an employee to a perspective employer. That immunity applies unless the employee can establish that the employer disclosed information with the knowledge that it was false, with the deliberate intent to mislead the perspective employer in bad faith or with malicious purpose, or that the disclosure of particular information was an unlawful discriminatory practice.
However, it is not uncommon for disgruntled former employees who are unable to find new jobs to file lawsuits against former employers alleging defamation. Because the cost of the defense of such a claim can be substantial—even if the claim entirely lacks merit—we generally take the conservative approach and advise employers that the safest practice is to limit information given in response to a reference inquiry to dates of employment and position held.
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