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Employer Provided a Negative Employment Reference-Is It Defamation?

Whitten and Lublin | Apr 10, 2018

A reference from a past employer can turn out to be the determining factor of whether a candidate lands a job he/she strongly desires. It is a way for recruiters to gain insights into potential concerns with a candidate and to verify information provided by the candidate during the hiring process. Likewise, a negative reference will make it far less likely the candidate is offered the job, and can also have the potential to hurt an individual’s reputation in some instances. However, can this leave an ex-employer liable for defamation? The case of Papp v. Stokes Economic Consulting Inc. and Ernest Stokes deals with this exact instance.

In this case, Papp was a Staff Economist for the Stokes, but eventually was laid off due to a work shortage. Nonetheless, upon a request from Papp, the employer agreed to provide a reference for any upcoming job opportunities. Papps soon learned that he was the number-one candidate for a position with the Yukon Government. After conducting a reference check with Mr. Stokes, the Yukon Government did not offer Papps the job. In response to questions by the Yukon Government recruiter, Mr. Stokes maintained that Papps did not get along with coworkers, that he did not work well in a team setting, that his work was not satisfactory and that there was “no way” he would be re-hired by Stokes. The Yukon Government then informed Papps that he was not being offered the job due to a negative reference by Stokes.

At trial, it was argued that Mr. Stokes was reckless in his assertions made to the Yukon Government. Specifically, although these allegations were brought to the attention of Mr. Stokes after Papps was laid off, it was argued that Mr. Stokes should have verified the allegations with Papps himself. Ultimately, the court ruled that these statements were defamatory, however, they were not made with malice nor were reckless, and that the statements were “genuinely believed to be true”. As a result, Mr. Stokes was not liable for damages for defamation.

Overall, qualified privilege is the reason references are protected from claims of defamation provided the reference is not malicious nor untrue. This is due to the fact that an individual providing an employment reference has a duty to provide one that is truthful and the recruiter has a duty to receive a truthful statement.

If you find yourself, as a candidate or referee, in a similar situation, it is advisable to seek legal advice from an employment law expert. Whitten and Lublin has you covered.

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