As an employer in Maryland, how truthful can you be when providing information about a former employee’s job performance to a prospective employer? Are you liable if you disclose negative information, especially if that information results in the employee not getting the job? The answer is, in most instances, no. What Employers need to know about Defamation Claims in Maryland According to an unpublished decision by the Fourth Circuit in the case of Spence v. NCI Information Systems, Inc. (Case No. 09-1391), a Maryland employer is not liable for disclosing information about a former employee’s job performance unless it is shown by “clear and convincing evidence” that the employer acted with “actual malice” or “intentionally or recklessly disclosed false information.” In the aforementioned case, Spence v. NCI Information Systems, Inc., the Plaintiff sued his former employer alleging his former supervisors made defamatory statements to his prospective employer, the United States Air Force. When interviewed as part of an extensive background check, each former supervisor provided unflattering recommendations.
- The first supervisor said that he would not recommend the Plaintiff for any position related to computer forensics because the plaintiff lacked the ability to work with others and often failed to meet the requirements set forth by supervisors and customers.
- The second supervisor also stated she would not recommend the Plaintiff for a computer forensics position for a similar reason, claiming the Plaintiff was not well liked within the workplace and often lacked some of the social skills needed to successfully complete his assignments.
- The third supervisor agreed with the first two, failing to recommend the Plaintiff for any position related to computer forensics, claiming he was completely unreliable, untrustworthy, and frequently failed to meet deadlines set forth by the management.
The Plaintiff sued NCI for defamation and invasion of privacy based on the interview statements of the three supervisors. However, according to Maryland law, an employer may generally disclose information about a former employee’s job performance to an inquiring prospective employer as long as it cannot be proven that the employer either “acted with actual malice” or “intentionally or recklessly disclosed false information.” In the case of Spence v. NCI Information Systems, Inc., the Plaintiff failed to produce evidence that any supervisor made the statements with malice or disregard for the truth. Simply because this case demonstrates no employer liability, it does not mean that employers should freely share their opinions about a former employee with a prospective employer. It is always prudent advice to confirm the former employee’s dates of employment and job title and sometimes salary, but only upon receipt of a signed authorization. When answering questions from a government official, temper statements based on documented job performance or other factual information, such as attendance. You wouldn’t want to find yourself winning a claim, yet still having to pay expensive defense costs.
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