Employers should exercise care when providing job references for current or previous employees to potential new employers. A current or previous employee may have a cause of action for a defamation lawsuit if the previous employer recklessly or maliciously makes a false statement about the employee to the potential new employer asking for the job reference.
In South Carolina, the legislature has enacted a statute to provide employers some immunity from civil liability when providing certain limited information in response to a request for a job reference. Under S.C. Code Ann. 41-1-65, an employer may provide an employee or former employee’s dates of employment, pay level, and wage history to a prospective employer without fear of civil liability.
When a prospective employer sends a written request for a job reference, the employer may respond in writing to the request without fear of civil liability and may disclose written employee evaluations signed by the employee, official personnel notices that formally record the reason(s) for separation, whether the employee was voluntarily or involuntarily released from service and the reason(s) for the separation, and information about the employee’s job performance.
An employer does not have protection or civil immunity where it knowingly or recklessly releases or discloses false information about a current or previous employee to a prospective employer requesting a job reference. In addition to the statutory protections available to employers in South Carolina, the common law qualified privilege may apply and provide the employer with protection from civil liability in certain situations. At any rate, employers should exercise due care and proceed with caution when providing job references to prospective employers.