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What's my risk if I give a negative reference for a fired worker?

The following scenario is one many employers in this region have encountered at some point. The hiring manager for another company calls seeking information about a former employee you got rid of or outright fired. What can you say in reference to this individual and what legal risk do you face for anything you do say?

In both Kentucky and Ohio, employers can take heart knowing that they have the benefit of the law on their side. Both states have provisions that extend immunity to employers when giving references. Of course, the fact that protection exists is no guarantee against beingĀ faced with legal action. Effective resolution is most likely with experienced litigation counsel at your side.

It is important to note that in both states, the right to protection against actions from a former employee is not absolute. It is dependent on making sure that whatever you say about the worker represents your honest assessment of his or her performance. It can be good or bad, as long as it is offered in good faith and is truthful.

In Kentucky, the immunity statute clearly states that immunity extends unless the information disclosed by the former employer is false, offered with reckless disregard for whether or not it's true or false, or meant to mislead the prospective employer. Another exception is if the disclosure violates state anti-discrimination laws.

The Ohio code is very similar, but goes one step further with a provision that states that if a former employee does sue and a jury finds for the defendant, the court may deem the suit to have been frivolous and order the plaintiff to pay costs of the trial.

Making no comment or limiting comment to confirming whether someone worked for you might be one way to deal with these situations, but understanding the law can give you confidence about whatever you decide.

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Gatlin Voelker,PLLC

Gatlin Voelker, PLLC
2500 Chamber Center Dr. Ste. 203
Fort Mitchell, KY 41017

Phone: 859-781-9100
Fax: 888-456-9179
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Call : 859-781-9100