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Q&A: Liability, Risk Management, & Insurance

Legal Counsel for Philanthropy and the Nonprofit Sector

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Q&A: Liability, Risk Management, & Insurance

1. Recently I was asked to give a reference for a former employee. I told the truth - that he wasn't worth a tinker's dam. Word somehow got back to him and now he's threatening to sue me. For what!? Being candid and honest? Does he have a leg to stand on?

Probably not, but it depends on the circumstances. Also, if he feels wronged or angry, there is nothing to prevent him from initiating a law suit, regardless of the merits.

Any suit he initiated would almost certainly be brought on a claim of defamation (often called libel). Truth is an absolute defense to a defamation claim. So if you can show that he really wasn't worth a tinker's dam, or in other words, that your statement is based on a reasonable evaluation of his performance and skills, then you will likely prevail. In addition, depending on the case law in your state, in such a context employers may be able to make candid statements about former employees which are privileged communications and thus not actionable.

However, statements made with an improper motive, with malice, or with a discriminatory intent are not protected and can be grounds for defamation, particularly when a person's livelihood is at sake. In sum, candid and critical appraisals or opinions will not in themselves get you into trouble; unsupported allegations or misrepresentations of fact might.

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