Levitt: What if your former employer gives you a negative reference?


Employers in Canada can say the most horrible things about employees in an employment reference, even if they are untrue, as long as they are stated in good faith.

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I constantly receive marketing materials from PR firms or people who want to be quoted in my column. I usually file them quickly under G (G for trash). But one just got lucky.

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Allison & Taylor Inc., an American employment reference checking company, sent me a list of “scenarios that could prevent a job offer.” I selected the most interesting items from their list. The questions are theirs, but the answers are quite different and entirely mine:

1. Are you protected by your former company’s policy of only confirming dates and job title in a reference?

Most Canadian companies have what I call “name, rank and serial number” reference policies, only providing positions and dates of service when called for a reference. This is based on the mistaken belief that they could be sued if they say something derogatory about a former employee, or perhaps because as Canadians they are polite by reflex.

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Such a policy is misguided and deprives employers of one of their armada’s main motivating tools. If an employee, rambling or bubbly, knows that he will receive the same reference as everyone else, the employer loses a primary incentive for excellence.

In addition, employers are legally protected from lawsuits for derogatory references. Unlike in the United States, employers in Canada can say the most horrible things about employees in an employment reference, even if they are untrue, as long as they are stated in good faith – based on honest belief. of this employer – and not through negligence. This is because there is a legal “qualified privilege” in defamation reference checks. Therefore, employers who adopt general referral policies for fear of being sued are ill-advised.

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But here comes the friction. If an employer clearly states in a policy to all employees that it will only provide dates of employment and title, and then continues to provide a negative reference, that employer risks being sued for breach of contract. Published Company policies are contracts. If you as an employer have such a misguided policy, don’t put it in writing.

2. Does your boss put you down?

If an employee is slandered by a former employer outside the legal protection of an employment reference, qualified privilege will not apply and you can sue that former employer for defamation. Further, even if it is in the context of a privileged employment referral, if you can demonstrate that the employer referral was made maliciously or negligently, that privilege is lost.

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I generally find that when an employee approaches our office to take action against an employer who provides a negative referral, most employers will stop doing so when threatened with legal action, no matter how small this action may actually be.

3. Do you have a separation agreement with your former employer regarding references? Is it honored?

Smart employees, especially after a deadly battle, will incorporate a positive reference requirement into their severance agreement.

However, if it is breached, fortunately you no longer need to establish malice, only that your agreement is breached. You can then sue for breach of contract.

But how to prove this? Potential new employers will not want to be drawn into your fight and involving them could be fatal to your job prospects there. Often, employees will find an employer friend to call on their behalf to get the reference, even recording the conversation, which is legal in Canada. Employers in this situation should therefore be aware not only of the contract, but also of the possibility that their reference may be recorded and used against them.

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Employers are also faced with the question of who exactly is bound by such a contract. The whole company should not be bound by the obligation to provide a positive reference, because the employer cannot be responsible for everyone, especially those who were not aware of the dispute or of the original settlement.

Employers, by accepting such a clause, should define precisely the managerial staff concerned.

4. Have you been the victim of discrimination, sexual harassment or unfair dismissal?

Predatory employers tend to remain predatory even after a layoff and are at greater risk of providing pejorative references. This could be added as grounds for punitive or other damages in a wrongful dismissal case, as well as grounds for awarding more months of severance pay.

Some courts have found that denying a deserved reference results in greater damages for wrongful dismissal. For the same reason, a reference that creates more difficulty in obtaining re-employment, if established, is a reason for a court to increase severance pay.



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