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Waiver protection is limited

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Q. Many of my former employees want me to provide post-employment references, but I'm afraid of liability. Can I ask them to sign a release giving me permission to provide references that would absolve me from any liability? —A.K., Virginia

A. Yes, you can enter into a written agreement with departing workers that specifies which information you would provide and releases you from any liability for giving out that information. Such agreements help, but they may not necessarily insulate you from liability.

You're still at risk for potential claims of defamation. This means an individual can hold his former employer liable for providing information to prospective employers that is false and harms his reputation. Courts in some states have ruled that a release absolutely protects an employer from liability for defamation. Courts in other states have reached the opposite conclusion, especially when the employer made statements beyond those authorized by the employee.

Notably, some states' statutes allow employers to give good-faith references without fear of liability unless the employer acts maliciously or knowingly provides false information. Inevitably, however, the employer bears the burden of proving that its statements were true, that it did not know the statement was false, that it did not act maliciously, or that it provided only that information covered in the release.

In sum, an employer that provides more than the date of hire, last job title, last salary and date of termination faces some threat of litigation and liability for defamation.

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