BOP NEWSLETTER • February 2024

Q: May an employer be sued due to the contents of a post-termination reference?

A: Yes, absolutely. This is where the majority of employment-related defamation claims get started. If the employer makes any false statements about former employees that are damaging to their reputation – particularly those that may affect whether the individual gets hired – it could be exposed to a claim for defamation. The easy way to avoid defamation claims is to stick to the facts when making post-termination references. Many businesses will provide references that only include basic information like date of hire, employment tenure and date of organizational exit. If, however, a more detailed reference is preferred, it should include only factual information. Employers should try to stay away from providing an opinion regarding a former employee as that type of information could be viewed as false and damaging, depending on how it’s phrased.