“Damn with faint praise” The legal,practical, and ethical implications of providing and not providing employee references

In the past decade, there has been a multiplicity of lawsuits by employees against former employers based on defamatory references. Many of these lawsuits have proven to be successful and have caused wary employers to use great care in providing references. A number have gone so far as to refuse to provide references at all, instead adopting a “no-comment” policy, often on the advice of legal counsel. This article reviews defamation laws within the context of employee references. Recent cases and trends are analyzed, guidelines to avoid liability are suggested, and a critique of the traditional legal advice of “no-comment” is provided. Finally, business-related and socioethical aspects of the problem are considered.