Is it Illegal to Provide a Negative Reference? It Depends.
Let’s be honest, references can make or break a job seeker’s chances of getting hired. Although
being asked to provide a reference is a routine thing for many coworkers, hiring managers and
supervisors — both the applicants and references themselves typically have a clear idea of
what kind of reference information will be provided — there are times when this process is less
predictable than one would hope. And it’s not altogether uncommon for prospective employers
to independently reach out to previous coworkers and hiring managers without consulting either
party, increasing the chance that a less favorable reference will be provided.
So is it illegal to provide a negative reference? It depends.
A Case of Accuracy
The answer is generally no, it is not an issue of law to give a negative reference that is factually
accurate and/ or a subjective opinion. Reference contacts are free to speak their minds with
regard to a candidate’s job performance, so long as that is done in good faith and does not veer
into malicious territory. It is also not an issue of law for someone to agree to provide a reference
without disclosing to the applicant what the nature of their reference will be. Job seekers should
likewise bear in mind that their reference contacts are not obligated to provide favorable
reference information simply because they have agreed to act as a reference at all.
However, factually inaccurate references provided with bad motives can be an issue of law
should the job seeker decide to pursue a claim of defamation. All parties should be aware that
false statements intended to harm are unlawful and could lead to damages for the injured party.
For example, a reference contact making false claims that a former employee had stolen from
the company would be illegal, but providing an opinion that the employee was not particularly
skilled with financials management would not be an issue of law.
Providing a negative reference because the former employee sued or threatened to sue the
employer is also dangerous, potentially exposing the former employer to liability for retaliation,
tortious interference, or even breach of contract.
Reference contacts should stick to what they know regarding the facts and offer neutral
evaluations where appropriate. Otherwise, they could be subject to liability for maliciously
providing information that causes harm to someone. Job seekers should, as in every area of the
job search, exercise their best judgement and rely only on trusted contacts within their network.
CJR for the firm.