Earlier this week, the Connecticut Supreme Court decided Malan v. University of New Haven Police Department, an important decision for employers to be aware of when dispensing with job references.  In an earlier post, we discussed how the court created a qualified privilege for such references. 

So what questions did the court leave open? Well, the old expression when it comes to legal decisions (and, for that matter, financial statements) is to always check the footnotes. 

Checking footnote 8 reveals that the court left open the question as to what would defeat the privilege. 

• ‘[W]e need not decide whether, in a defamation action such as this one, a plaintiff could prove actual malice to defeat the qualified privilege on some lesser showing of recklessness."

But the court goes point out that it is not deciding whether other ways to defeat the qualified privilege will work either.

• "We also need not decide whether a plaintiff alleging defamation could overcome the qualified privilege without proving actual malice, by proving a lack of good faith on the part of the employer. "
• "Finally, we need not decide whether a plaintiff could overcome the qualified privilege without proving actual malice, by proving that the defamatory statement had been published to others."

What does this all mean? Well, for starters, it means potential litigation on this issue.  But more important, it suggests that if the employer can show that the job references were made "in good faith", that may go a long way towards maintaining the qualified privilege.  (An honest appraisal will also defeat a defamation claim by being "truthful".)

But the last note suggests that it is an open question as to whether a defamatory comment in a job reference could defeat the qualified privilege, just by being published, without even a showing a lack of good faith.  That type of approach would seem to significantly weaken the qualified privilege’s scope — something that the court took great pains to set up in this case.  Given the court’s unanimous decision setting up the qualified privilege, it would be unlikely the court would undercut it by allowing the privilege to be defeated fairly readily. 

Nevertheless, for employers who want to provide job references for its current and former employees, the decision provides a good deal of protection.  

 (For advice on how to write a good job reference letter, the Employment Blawg has a very good article today with several practical links.)