In a recent unpublished decision by the Third Circuit Court of Appeals, the Court affirmed the lower court and held that a former employee could not maintain legal claims against his former employer, based on truthful statements regarding his employment provided to two prospective employers.   In its ruling, the Court emphasized that an employer has a “conditional privilege” when it provides information regarding a former employee to a prospective employer.   

     In this case (Bentlejewski v. Werner Enterprises, et al), a truck driver (James Bentlejewski) employed by Werner Enterprises resigned after one year, and later began a training course with the prospect of employment with another transportation company.  Pursuant to regulations established by the Federal Motor Carrier Safety Administration, the new company requested Mr. Bentlejewski’s driving history report.  In response, Werner provided information that Mr. Bentlejewski had been involved in several minor accidents, each of which was identified as “preventable.”  Based on this information, Mr. Bentlejewski was not offered the position.  Almost a year later, Mr. Bentlejewski began probationary employment with another company, which was discontinued after the new employer obtained the same information regarding Mr. Bentlejewski’s driving history with Werner.  Several months later, Mr. Bentlejewski filed suit in federal district court in Pennsylvania against Werner, alleging that the employment references provided by Werner to the two prospective employers contained “false and misleading” information, and asserting claims for defamation and interference with contractual relations. 

     The district court dismissed Mr. Bentlejewski’s claims, holding that Werner was protected by a conditional privilege granted to employers who provide information about employees to future prospective employers, and that Mr. Bentlejewski failed to overcome that privilege.

     On appeal, the Court of Appeals made clear that Werner’s actions were subject to a conditional privilege under both Pennsylvania law and the Federal Motor Carrier Safety Act.  The Court held that the district court erred by ruling that Pennsylvania law required Mr. Bentlejewski to show that Werner intentionally provided inaccurate information in order to defeat the privilege, rather than simply acting negligently.  The Court concluded that this error was immaterial, however, because the federal regulations pertaining to drivers specifically requires intentional conduct to establish liability, rather than mere negligence.  Looking at the evidence at hand, the Third Circuit held that it did not support Mr. Bentlejewski‘s assertion that the information provided by Werner was inaccurate as to any of the traffic incidents in which he was involved.  Therefore, the Court concluded that Werner could not be liable for providing false information regarding Mr. Bentlejewski’s employment, and affirmed the district court’s ruling. 

      This decision is consistent with laws in most jurisdictions (including New York and California) that provide a qualified or conditional privilege to employers who provide information regarding its employees to prospective employers.  Indeed, the prevailing standard is that an employer cannot be liable for defamation or other claims regarding employment references without evidence that it acted “with malice” in providing incorrect information to a prospective employer; that is, the employer acted intentionally or with reckless disregard for whether the information was accurate.  Therefore, although the safest approach adopted by many employers is to only confirm dates of employment, last positon held, and (with the employee’s permission) salary information, such a conservative approach is not strictly necessary in order to avoid liability.  Nevertheless, in cases where information provided in response to a reference request does appear to be inaccurate, it may be difficult to establish whether the employer was simply negligent or acted with malice, making courts reluctant to dismiss such claims.  Therefore, the legal landscape presents pitfalls for employers who are not careful and deliberate when responding to requests for employment references.  Although circumstances vary, it may be prudent for employers responding to requests for information regarding former employees to consider taking the following steps:

          1.         Adopt a consistent policy regarding the information disclosed.  If employers go beyond the “name, rank, and serial number” approach to references, it should be clear and consistent as to what information will be provided (i.e., whether termination was voluntary/involuntary, reason for termination if involuntary, performance rating, etc.).  Disclosing the same information regarding all employees ensures fairness and reduces legal risk.

          2.         Require that all information be provided by a single source.  In order to reduce the risk of inaccurate and inconsistent information, all reference requests should be handled by one source, usually HR.  Company managers should understand this policy, and all prospective employers should be made aware that if a former employee’s supervisor discloses any additional information beyond that provided by the policy, it should not be considered a communication on behalf of the company.

          3.         Insist that reference requests be in writing.  Disputes sometimes develop regarding what information has been requested regarding a former employee, and by whom.  Requiring that reference requests be in writing creates a written record that may later prove useful.