In an important decision to be officially released next week, the Connecticut Supreme Court has found that a qualified privilege exists to employers giving job references.
Specifically, in an issue of first impression, the court has now "recognized a qualified privilege for the employment references of current or former employers that were solicited with the employee’s consent."
In Miron v. University of New Haven Police Department, a unanimous Court rejected a former employee’s defamation claim against the employer even if the employer — in the course of providing a good-faith assessment — issues false statements.
Why? Justice David Borden (who incidentally is now a Judge Trial Referee) writes:
We believe that the integrity of employment references not only is essential to prospective employers, but also to prospective employees, who stand to benefit from the credibility of positive recommendations. …
It also would encourage a ‘‘culture of silence’’ not to afford a qualified privilege
to employment references that are made in good faith and without improper motive.
The decision, which adopts the rule set out in the Restatement of Torts and 19 other states, has the potential to have a dramatic impact on employment references in the state.
Many employers subscribe to the "name, rank and serial number" theory of references: just confirm the dates of employment and position, and nothing more.
For those employers, not much will change. But for those employers who wish to provide something more, this decision provides a safe harbor of sorts. (Savvy employers who wish to get information about prospective employers can also use this decision to try to persuade the former employer to give up more information than "dates of employment and position" as well.)
The key to establishing this privilege appears to be found not only in the court’s language that the references be made "in good faith" and "without improper motive" but also that the references be sought with the employee’s "consent".
For prospective employers, written authorization from the applicant should be sought in the hiring process to check references. For former employers, getting a copy of that written authorization, while perhaps not required, may not be a bad idea in particular cases. But how this will play out in practice remains to be seen.
The court’s decision contains several other important nuggets for employment practitioners that I’ll touch on in the upcoming days. But for now, because the Court speaks so rarely on employment issues, the decision is worth a look at as sign as to how the current court views such cases. For employers, its certainly an encouraging sign.