My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.
We have all heard the admonition that “less is more.”
In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is. In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.
The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit. According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007. At the end of the season, the company needed to downsize for the winter. The plaintiff and others were laid off. His termination paperwork indicated that he had been laid off due to lack of work.
A few months later, the plaintiff was offered a job by another aviation company. In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation. Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.
Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues. The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.
When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation. He claimed that his former employer had engaged in defamation with malice. A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.
Not surprisingly, the employer quickly appealed the verdict.
However, the Appellate Court affirmed the trial court’s award. The court concluded that Tradewind Aviation’s actions weren’t excused simply because Mr. Nelson had requested the information as part of a job reference. Instead, the court found that the former employer had acted with malice when it gave the prospective employer information that it knew to be false, such as the claim that he had been fired for performance issues instead of being laid off for lack of work.
The case stands in contrast to a Connecticut Supreme Court case Dan reported on way back in 2007 which created a qualified privilege for job references. But the court in that case left open the question of what would happen if the employer’s job reference was made with “actual malice”. The Appellate Court now answers part of those open questions by affirming the trial court’s rulings.
So how can you avoid this fate?
· First, be sure that any job reference information you provide for a former employee is both accurate and consistent with your internal records.
· Second, as we have repeatedly discussed on this blog, document employee performance issues as they happen. The court determined that Tradewind Aviation had acted maliciously because there was no evidence to support its claim of the employee’s poor performance.
· Finally, when asked to provide a reference or recommendation, consider limiting your response to the employee’s title, dates of employment, and final rate of pay. This information is fairly undisputable and shouldn’t be able to get you, or your former employees, into any trouble. Dan talked about this in more detail in a prior post last fall.
When the alternative is a $400,000 judgment and six years of litigation, it becomes easy to see why, when it comes to employment references, less is most definitely more.