10.5 References and blacklisting

References and blacklisting are crucial aspects of employment law. They impact how employers share information about former employees and can affect job seekers' prospects. Understanding these concepts helps protect both employers and employees from potential legal issues.

Proper handling of references and avoiding blacklisting practices are essential for maintaining fair employment practices. Employers must balance providing truthful information with protecting themselves from liability, while employees need to be aware of their rights regarding references and potential blacklisting situations.

References and blacklisting

Employer reference policies

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• Establish clear guidelines for providing references to ensure consistency and minimize legal risks
• Designate specific individuals (HR, supervisors) authorized to provide references on behalf of the company
• Require written consent from former employees before releasing any information beyond basic employment verification
• Implement a policy of providing only neutral, factual information (dates of employment, job title, salary) to avoid subjective opinions

Limits on negative references

• Avoid making false, misleading, or malicious statements about former employees that could harm their future employment prospects
• Stick to objective, verifiable facts when providing negative information, such as documented performance issues or policy violations
• Refrain from sharing personal opinions, rumors, or unsubstantiated allegations about an employee's character or conduct
• Ensure that any negative information shared is directly relevant to the employee's job performance and not discriminatory or retaliatory in nature

Defamation in references

• Defamation occurs when an employer makes false statements about a former employee that damage their reputation or ability to secure future employment
• Statements must be factually untrue and not just opinions to be considered defamatory
• Former employees may sue for defamation if they can prove the reference contained false information and caused them harm (loss of job opportunity)
• Employers can defend against defamation claims by demonstrating the truth of their statements or invoking qualified privilege

Qualified privilege for references

• Qualified privilege protects employers from defamation liability when providing honest, good-faith references about former employees
• Applies when the reference is given to a party with a legitimate interest in receiving the information (prospective employer)
• Privilege is lost if the employer acts with malice, knowingly provides false information, or shares information irrelevant to the inquiry
• Employers should limit references to job-related facts and avoid unnecessary disclosure of personal information to maintain qualified privilege

Blacklisting former employees

• Blacklisting involves actively seeking to prevent former employees from obtaining new employment, often through informal networks or agreements among employers
• May occur when an employee is fired for misconduct, whistle-blowing, or engaging in protected activities (union organizing, discrimination complaints)
• Employers might share "do not hire" lists, make negative comments to industry contacts, or threaten legal action against companies that hire the blacklisted individual
• Blacklisting is illegal in many jurisdictions as it interferes with an individual's right to seek employment and can be retaliatory in nature

Consequences of blacklisting

• Blacklisted employees may struggle to find new employment in their industry, leading to financial hardship and damaged career prospects
• Employers engaging in blacklisting could face legal action, including claims of defamation, retaliation, tortious interference, or antitrust violations
• Blacklisting can create a culture of fear and silence among current employees, who may be reluctant to report misconduct or assert their rights
• Negative publicity surrounding blacklisting can harm an employer's reputation and ability to attract top talent

Anti-blacklisting laws

• Some states have enacted laws specifically prohibiting employers from blacklisting former employees or engaging in concerted efforts to prevent their re-employment
• These laws provide legal recourse for affected individuals and may impose penalties on employers who violate them
• Federal labor laws (NLRA) prohibit blacklisting of employees for engaging in protected union activities
• Anti-retaliation provisions in various employment laws (Title VII, FLSA) may also apply to blacklisting in response to an employee asserting their rights

Tortious interference claims

• Tortious interference occurs when a third party intentionally disrupts an individual's prospective business relationships, such as future employment
• Blacklisted employees may bring tortious interference claims against former employers who actively seek to prevent them from securing new jobs
• To prevail, the employee must show the existence of a valid business expectancy, the employer's knowledge of that expectancy, and intentional interference causing harm
• Employers can defend against these claims by demonstrating a legitimate business justification for their actions or asserting qualified privilege

Retaliation vs blacklisting

• Retaliation occurs when an employer takes adverse action against an employee for engaging in protected activities (filing discrimination complaints, participating in investigations)
• Blacklisting can be a form of retaliation if it is done in response to an employee asserting their legal rights or reporting misconduct
• Retaliation is prohibited under various employment laws (Title VII, ADEA, ADA) and can lead to legal liability for employers
• While blacklisting may not always be retaliatory, it is important for employers to ensure their actions are not motivated by an employee's protected activities

Blacklisting and antitrust law

• Agreements among employers not to hire certain individuals or to share "do not hire" lists may violate antitrust laws
• Antitrust laws prohibit agreements that unreasonably restrain competition, including in the labor market
• Blacklisting arrangements can limit employees' ability to freely seek employment and suppress wages by reducing job mobility
• Employers involved in blacklisting agreements may face civil and criminal penalties under antitrust statutes (Sherman Act)

Blacklisting in unionized workplaces

• Federal labor law (NLRA) prohibits employers from discriminating against or blacklisting employees for engaging in protected union activities
• This includes forming or joining unions, participating in collective bargaining, or engaging in concerted activities for mutual aid and protection
• Employers cannot use hiring practices or reference policies to discourage union membership or retaliate against union supporters
• Unions may file unfair labor practice charges with the NLRB against employers who engage in blacklisting of union members

Blacklisting and protected activities

• Blacklisting employees for engaging in protected activities is illegal under various employment laws
• Protected activities include filing discrimination complaints, participating in investigations, reporting safety violations (OSHA), or taking protected leave (FMLA)
• Employers cannot use references or hiring practices to retaliate against employees who assert their legal rights
• Employees who face blacklisting due to protected activities may have legal claims against their former employer

Negligent referral liability

• Employers may face negligent referral liability if they provide false or misleading positive references that lead to harm at a subsequent workplace
• This can occur if an employer fails to disclose known safety risks, violent tendencies, or serious misconduct of a former employee
• Negligent referral claims arise when the former employer's omission leads to foreseeable harm to others at the new workplace
• Employers should balance the need to provide truthful references with the potential risks of disclosing sensitive information

Omissions in references

• Employers are generally not required to disclose all information about a former employee in a reference, but material omissions can be problematic
• Omitting critical information, such as a history of violence or theft, may expose the employer to negligent referral liability if harm occurs at the new workplace
• Employers should have consistent policies on what information to include or exclude in references to avoid selective omissions that could be discriminatory
• When in doubt, employers may choose to provide only basic employment verification to minimize risks associated with omissions

References and discrimination

• Reference policies and practices must not discriminate against employees based on protected characteristics (race, gender, age, disability)
• Employers cannot provide negative references or refuse to provide references based on an employee's membership in a protected class
• Consistently applying reference policies to all employees, regardless of protected status, can help avoid discrimination claims
• Managers providing references should be trained on anti-discrimination laws and the importance of avoiding biased or stereotypical language

Neutral reference policies

• Many employers adopt neutral reference policies to minimize legal risks associated with providing substantive references
• Under a neutral reference policy, the employer provides only basic factual information, such as dates of employment, job titles, and salary history
• Neutral policies help ensure consistency in references and reduce the risk of defamation, negligent referral, or discrimination claims
• Employers should have clear guidelines on what information can be shared under a neutral reference policy and train managers accordingly

Negotiating references in severance

• Departing employees may seek to negotiate the terms of their references as part of a severance agreement
• This can include specifying what information will be provided, designating a specific contact person for references, or agreeing to a pre-approved reference letter
• Employers should carefully consider the implications of agreeing to special reference terms, as they may set a precedent for future departing employees
• Any reference terms included in a severance agreement should be clearly documented and communicated to those responsible for providing references

References and social media

• The rise of social media has added new complications to the reference process, as employers may access publicly available information about job applicants
• Employers should exercise caution when using social media to screen applicants or gather information, as it can lead to discrimination claims if protected characteristics are revealed
• Managers should refrain from providing references or commenting on former employees' job performance on social media platforms
• Employers should have clear policies on the use of social media in the hiring process and train managers on appropriate online conduct

Best practices for giving references

• Establish clear, consistent policies on providing references and designate specific individuals to handle reference requests
• Obtain written consent from former employees before providing substantive references beyond basic employment verification
• Stick to objective, job-related facts and avoid sharing personal opinions, rumors, or unsubstantiated information
• Provide the same type of reference for similarly situated employees to avoid discrimination claims
• Keep records of reference requests and responses to demonstrate consistency and fairness in the process

Requesting references from applicants

• Employers should obtain written consent from job applicants before contacting their references
• Consistently request the same type and number of references from all applicants to avoid discrimination claims
• Verify the identity and relationship of the reference provider to ensure the legitimacy of the information received
• Ask job-related questions and avoid inquiring about protected characteristics or personal matters unrelated to the applicant's qualifications
• Document the reference information received and maintain confidentiality to the extent possible

Verifying information in references

• Employers should take reasonable steps to verify the accuracy of information provided in references
• This may include contacting additional references, conducting background checks, or requesting documentation of specific claims (e.g., certifications, awards)
• Employers should be cautious about relying solely on references when making hiring decisions, as they may not always provide a complete or accurate picture of an applicant's qualifications
• Any discrepancies or red flags raised during the reference process should be addressed with the applicant and carefully considered in the context of the overall application
• Employers should document their efforts to verify reference information and maintain records in accordance with applicable laws and company policies