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

Author: Michael C. Jacobson, XpertHR Legal Editor

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 re-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 the reference sticks to those facts, the employer can avoid a defamation lawsuit.  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.