Giving a negative review concerning a former employee in Virginia.

As an employer in Virginia, have you ever been concerned about what you should say when you receive a call about an employee or former employee’s job performance?  As in most areas of Virginia law, you are largely protected as the employer.  However, you should still use prudence when you have to give a bad recommendation for a former employee.

Does Virginia law provide the employer giving the bad review with any protection?

Under the Virginia code, information provided to a person’s prospective or current employer is protected if it is related to: job performance, professional conduct or reasons for termination/separation.  Code of Virginia § 8.01-46.1.  It is important to remain subjective when asked to provide information regarding an employee’s history and ensure that your statements may not be interpreted as being unrelated to work performance.  Information could mean facts, data and opinions.

Virginia law gives the employer providing the bad review immunity from civil liability (i.e. defamation suit) for providing this information if the employer is not acting in “bad faith.”  It is automatically assumed that the employer is acting in good faith when providing a review of a former employee’s performance.  That is a rather high hurdle for the employee to overcome in any alleged defamation suit.  In order to prevail on a defamation claim, the employee would need to show clear and convincing evidence that the employer acted in bad faith.

Employers providing negative reviews should use discretion.

When an employer discusses the character of its employee with its employee’s potential employers, he is protected by a qualified privilege if such a conversation is made in good faith and if the statements are not made with malice. Hargrave v. Tignor, 24 Va. Cir. 353, 358 (Stafford County, 1991) (citing in part Williams Printer Co. v. Saunders, 113 Va. 159 (1912))

Clearly, an employer would want to avoid a dispute with a current/former employee.  It is important to understand the behaviors/circumstances in which it is not acceptable for an employer to give a bad review.  In Virginia, bad faith (malice) could be shown in the following ways (avoid at all possibilities):

a) Providing false information or providing information with a “reckless disregard” for the truth;

-“I heard another employee say that…”  Unless you have proof, it is best to stay away from this statement.

b) Providing negative information which is overheard by others who have no interest in the subject matter;

-Don’t make these statements in front of other employees.  Negative reviews are best discussed behind closed doors.

c) Making statements which are  “unnecessarily insulting” or using language which was stronger than necessary; OR

-Do not over exaggerate.  If you are upset at the time, wait until you have cooled down a bit to call the other party back.

d) Making statements which are intended to cause harm to the employee.

-Obviously, you would probably not hire this person again.  However, retribution should not be your main focus.  Don’t go out of your way to provide the information and certainly don’t be the one to contact the new employer first (let them come to you).

It is perfectly acceptable to provide a subjective and honest review of a former employee.

Remember, it is perfectly acceptable (and good business practice) to provide a subjective and honest review if you are asked.  After all, wouldn’t you want another employer to provide the same courtesy to you if you asked?  Just abide by the above rules and always consider how your statements may be perceived by others.

If you have any questions, please do not hesitate to contact my office.  I am an attorney that assists small businesses ensure that they are protected.