Say What!?! A Few Important Things To Know About An Employer’s Statements To Third Parties About Current or Former Employees

When applying for a job, have you ever worried about getting a bad reference from a former employer? What about comments at work? Have you ever been concerned with people saying things about you at work without telling the whole story?

You have rights. Employers are prohibited from making false statements of fact (written or spoken) to prospective employers and coworkers about employees. (e.g. “she stole money from the cash register” when indeed the employee did not). Employers may be held liable when they make false statements without regard for the truth and prevent an employee from getting a job or harm her reputation. This includes, for instance, statements made by an employee’s supervisor to another supervisor, human resources personnel, or other personnel with authority to hire and fire.

Here’s the thing though. In many states, employers may lawfully share their opinions and are immune from liability under certain circumstances. With respect to opinions, it’s tricky. Generally, opinion statements are not actionable. (e.g. “I think he is a bad worker”). Under Michigan law, however, an opinion is actionable when it implies, without disclosing, something that’s knowingly untrue as the basis for the opinion. (e.g. employee’s ex-supervisor says to a prospective employer, “I think he is a bad assembly worker because he isn’t productive” but does not disclose that the worker has always met his production requirements).

Regarding employer immunity, under Michigan law, an employer’s “good faith” disclosure of information from a former employee’s employment file about his work performance or qualifications is permitted under Michigan law. Thus, in a situation involving Michigan law, an employer could only be held liable if sufficient evidence establishes 1 or more of the following:

  • employer knew the information disclosed was false or misleading
  • employer disclosed the information with reckless disregard for the truth
  • disclosure was specifically prohibited by state or federal law

The moral of the story is that employees have protection against defamatory statements made by employers to third parties. They must be false statements of fact and not just opinions. As a practical matter, especially under Michigan law, employees will have a tough time overcoming employer immunity in the absence of an egregious situation.

For employers, the lesson under Michigan law is that any comments about an employee’s job performance to a third party should be supported by information documented in the employee’s employment file. The line between statements of fact and opinions is too close for comfort if you ask me. If it’s not directly from the employee file, it should probably be left alone. Employers are also prohibited from divulging information in certain reports (e.g. disciplinary reports, reprimand letters), and must delete these reports before releasing information to third parties, among other things.

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