In South Carolina, as in many states, there is a law enacted to protect employers (ostensibly) from defamation suits brought by former employees who don’t like the reference the employer gave to a prospective employer in the employee’s subsequent job hunt. This will frequently arise in the context where the employee was fired, and thus is rationally concerned about what the employer might say about him in the future.

Section 41-1-65 of the South Carolina Code of Laws addresses this situation and provides, in part:

(C) Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current employee or former employee from a prospective employer of that employee shall be immune from civil liability for disclosure of the following information to which an employee or former employee may have access:

(1) written employee evaluations;

(2) official personnel notices that formally record the reasons for separation;

(3) whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and

(4) information about job performance.

(D) This protection and immunity shall not apply where an employer knowingly or recklessly releases or discloses false information.

I’ve long suspected that employers, if they know about this statute at all, misunderstand what it does. What it doesn’t do is prohibit the employee from suing the employer in any and all instances. It does not give the employer the right to speak his or her mind freely and with disregard for facts (as opposed to defamation and as opposed to opinions). It does maintain liability for any information - whether oral or in writing - that is false and that is disclosed either recklessly (employer didn’t take reasonable steps to ensure the accuracy of the information) or knowingly (employer knew or should have known that the information was false).

When I was advising public entities on these issues, I’d suggest the entity adopt as a policy “dates of service and pay grade only” - in other words, the entity would only confirm dates of employment and the pay grade upon termination. While that will prevent questions about intent and accuracy from coming into play, it doesn’t solve the problem of the “free speaker” - the employee who fields the reference call and discloses too much. If the employee is acting within the scope of his employment, then the employer will be liable for any tort the employee commits - including defamation - during that reference call.

While I can’t (and don’t) advocate trickery or deception, it’s important for former employees to know what’s being said about them. If you have a friendly potential employer, so much the better - he can check your reference and report back exactly what was said. If not, there may be other ways to discern what’s really going on. Don’t hesitate to check with a lawyer to find out if there’s something amiss in your job references.