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Can an employer in Florida be sued for giving a poor reference?

When a person in Jacksonville is hunting for a job, one thing they may need are references from previous employers. Of course, in today's competitive market getting a job is not always easy, and job hunters will usually experience a certain amount of rejection. Some of them, however, believe that the reason they did not get a particular job is because a reference gave their prospective employer an unfavorable review. When this happens, a person may try to sue their former employer for defamation.

For a declaration to be defamatory, it must affect the worker's reputation, even if it did not actually harm the worker. The declaration will be looked at with regards to the situation in which it was made, who it was made to and with regards to other surrounding circumstances. Even mere conduct on an employer's part might be considered defamation in certain situations.

Also, an employer cannot be liable for defamation unless the declaration was published. This does not mean the declaration must be made to a large group of people. Even if the declaration is only made to one other person besides the worker, this can be considered an act of publication. Therefore, this could happen if the worker's ex-employer is responding to a request for a reference from a potential employer. The declaration can be written or spoken.

That being said, if an employer gives makes a truthful statement about an ex-employee that does not mislead a potential employer, the employer may be protected from accusations of defamation. Moreover, an employer has the defense of absolute privilege from being sued for defamation if they must, due to public policy, be completely immune in making their declarations. An employer may also have a conditional privilege as a defense if the declaration is made in good faith, there was a legitimate business need, the declarations were only made to those who needed to hear them and the declaration is made only when it is proper to do so.

In the end, this is a very general overview of employer liability for defamation. This type of business litigation is very complex, and this post cannot form the basis for any legal filing, nor is it meant to serve as legal advice. Employers concerned about the potential of a defamation lawsuit may want to work with a professional, who can explain their rights and protect their interests.

Source: FindLaw.com, "Avoiding Defamation in the Workplace, Giving References and Disciplining Employees While Avoiding Liability," accessed on Feb. 18, 2018

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