Court Rules that Higher Standard is Required for Defamation Claim Against Former Employer Giving Negative Employment Reference.

In an unpublished1 decision by the Fourth Circuit on March 15, 2011, the court held that in Maryland, an 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 Spence v. NCI Information Systems, Inc. (Case No. 09-1391), the plaintiff alleged that his former supervisors made defamatory statements to his prospective employer, the Air Force, when he applied for a position that required an extensive background investigation. When his three former supervisors were interviewed about Plaintiff’s performance at NCI, 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. Although not violent, Plaintiff was often rude to co-workers and customers. The supervisor feared that the plaintiff had a vindictive attitude. The second supervisor said that Plaintiff was not well liked within the workplace. Plaintiff was friendly with coworkers, but often lacked some of the social skills needed to successfully complete the mission. Plaintiff maintained a good relationship with male employees, but possessed a disrespectful and somewhat chauvinistic attitude toward female employees, specifically his superiors. On one particular incident, Plaintiff initiated a fistfight with a male co-worker in the office. Plaintiff possesses a temper and could possibly be vindictive. She would not recommend Plaintiff for a computer forensics position. The third supervisor reported that Plaintiff was completely unreliable, untrustworthy, and frequently failed to meet deadlines set forth by the management. He adamantly stated he would not recommend Plaintiff for any position, and Plaintiff was not welcome for a position with NCI in the future. Plaintiff sued NCI for defamation and false light invasion of privacy based on the interview statements of the three supervisors. Maryland law states that claims of defamation and false light against an employer are subject to a conditional privilege in Maryland. In other words, an employer may generally disclose information about a former employee’s job performance to an inquiring prospective employer. To overcome this conditional privilege, a plaintiff must prove by “clear and convincing evidence that the employer” either “acted with actual malice” or “intentionally or recklessly disclosed false information.” In this case, the plaintiff failed to produce evidence that any supervisor made the statements with malice or disregard for the truth. Malice cannot be established if there is evidence to show that the speaker acted on a reasonable belief that the defamatory material was substantially correct and there was no evidence to impeach the speaker’s good faith. Thus, the court reasoned that the statements in the Air Force’s background report were deemed conditionally privileged under Maryland law. This decision allows employers seeking information about their prospective employee the liberty to pursue more detailed information (other than the proverbial name, rank and serial number), so long as the appropriate questions are asked. Similarly, it significantly decreases the liability when a company representative answers questions truthfully about a person’s performance and discusses why a company would not rehire or recommend employment for a former problem.



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