Posted by Attorney Phyllis Towzey, November 23, 2015
I’ve been receiving a lot of questions lately about employment references. Should employers provide them? What can an employee do if they find out they are getting a bad reference, and feel that it is undeserved? Here’s what the Florida statute provides: Section 768.095 Employer immunity from liability; disclosure of information regarding former or current employees.—An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.
As you can see, employers have broad protection in giving out references, so long as they are not knowingly providing false information. Many employers incorrectly fear that they will be liable if they say ANYTHING negative about a former employee, and opt to simply provide dates of employment, position held, and salary. That’s not necessarily a good plan and will not always shield an employer from liability. For example, an employer could be held liable for failure to warn if they are specifically asked for a reference and do not disclose that the employee in question was fired for violence in the workplace, and that employee then is hired by another company and commits an assault at the workplace.
The best practice for employers is to think about what information you would legitimately want to know when YOU are the once calling for a reference. Of course, always avoid making statements that are motivated by ill will.
From the employee’s perspective, if you are receiving a bad reference your only legal recourse is if it is a false factual statement. Since such statement must be made knowingly in order for the employer to be liable, the first step is for you to contact your former employer by mail or email and point out the inaccuracy. If the factually incorrect references continue, then you need to seek legal advice.