If You Don’t Have Anything Nice to Say… Considerations for Employers Discussing Reasons for Employee’s Separation

Requests for references from former employers is a common occurrence in today’s workplace. But as a Florida employer, the reference you may give can get you in hot water. So, before you pick up the phone to provide your next reference or to talk to other coworkers about the reasons for an employee’s departure, it is important you understand Florida law.

First, employers should never make false or misleading statements to a third party about an employee (former or current). For example, if a potential new employer asks for a job reference for a former employee, and the employer makes false or misleading statements to a third party, the employer may be sued for defamation under Florida law.

This includes any false statements regarding the circumstances surrounding the employee’s departure from the company, like characterizing a voluntary resignation as a termination for cause.

Florida Appeals Court Strikes Ex-Hospital Employee’s Claim for Punitive Damages

On the other hand, an employer is not automatically liable for any potentially false statement made by one of its employees about another employee. And Florida law limits the types of damages that an aggrieved employee can seek in such situations. For example, a recent decision from the Florida First District Court of Appeal, Tallahassee Memorial Healthcare, Inc. v. Dukes, rejected a plaintiff’s claim for punitive damages against her former employer.

The plaintiff in this case worked as a patient care assistant in a hospital emergency department. She resigned from her join in job 2015 after management “confronted her about making personal long-distance calls” using the hospital’s telephone codes. One of the hospital’s supervisors characterized the situation as the plaintiff was fired for “stealing.”

The plaintiff subsequently sued the hospital for defamation. She later amended her complaint to ask for punitive damages. Unlike compensatory damages, punitive damages are designed to punish a defendant for “intentional misconduct” or “gross negligence.” Florida law expressly states an employer cannot be held liable for punitive damages based on the conduct of an employee unless the employer either “actively and knowingly participated in such conduct” or its officers, directors, or managers “knowingly condoned, ratified, or consented to such conduct.”

Here, the hospital denied either of the circumstances applied and moved to bar the plaintiff’s claim for punitive damages. The trial court denied the hospital’s motion. But the First District agreed to review the decision and ultimately reversed it, quashing the punitive damages request altogether.

The First District said the plaintiff’s complaint failed to allege any acts that showed the management of the hospital participated in or condoned the supervisor’s allegedly defamatory statement. Although the plaintiff characterized the supervisor as the “director” of the emergency department, Florida’s punitive damages law refers to knowledge or active participation on the part of a corporate director or officer. On that basis, the appeals court said the plaintiff’s request for punitive damages was out of order. She is still free to proceed with her claim for other compensatory damages.

What Can You Say About a Former Employee Publicly?

Employers should always take reasonable steps to avoid providing false or inaccurate information about former employees. That is not to say an employer should simply refuse to give references or speak about former employees to third parties under any circumstances, but it is important to understand that even seemingly harmless “gossip” about the reasons for an employee’s departure can lead to legal problems down the line. For this reason, many employers elect to adopt policies to only provide “neutral” references for employees, which means that they only confirm their dates of employment, position, and sometimes rate of pay, but nothing  more.

If you are an employer seeking  consult on employee references or drafting a neutral reference policy, or you are an employee who believes you may have lost a job or been defamed due to your employer’s false or misleading reference to a third party, contact a qualified Florida employment law attorney today.

Sources:

scholar.google.com/scholar_case?case=11040626504194596516

flsenate.gov/Laws/Statutes/2018/768.72