Blacklisting and Job References by State
Author: Marta Moakley, XpertHR Legal Editor
An employer may receive reference requests regarding current or former employees on a regular basis. In adopting a policy and practice regarding the provision of references, an employer may choose to forego detailed employee references and simply state that the employee is no longer with the organization.
However, some states do require employers to provide service letters (i.e., truthful statements of the reasons for an employee's termination). Service letters may be required in states that outlaw the blacklisting of employees. Blacklisting refers to the practice of creating or maintaining a list of individuals for whom only negative references will be provided, usually based on specific employee activities (e.g., individuals who supported unionization efforts). The practice unlawfully prevents a discharged employee from obtaining employment elsewhere.
An employer must always be aware of liability risks if providing a reference that is not entirely truthful. While the truth is a defense to a defamation claim, a misrepresentation or misleading statement may lead to liability under a number of state laws. Before deciding to provide references, an employer should be aware of any available defenses under state law to employee defamation claims that may result from a negative reference.
Finally, in addition to legal constraints on blacklisting and potential claims such as defamation, an employer may face increased liability risks based on employment contracts. Specifically, an employer should be aware of running afoul of nondisparagement clauses in employment agreements, which prevent an employer from disparaging, otherwise criticizing or bad-mouthing an employee.
The following chart lists state laws regarding employee blacklisting, job references and service letters. In addition, the chart contains citations of relevant defamation cases for each jurisdiction. The state name links to the relevant Employee Communications section of the Employment Law Manual, which contains more detailed information on the subjects.