Church Law and Tax 1992-01-01 Recent Developments

Employee Relations

Richard R. Hammar, J.D., LL.M., CPA

• An Indiana state appeals court threw out a lawsuit brought by a worker against her former employer for allegedly defamatory references given to prospective employers. A worker quit her employment with a secular employer following a dispute over working conditions. She then sought new employment. When she began experiencing difficulty finding another job, she became suspicious of the references her former employer was giving. In an attempt to determine the nature of the references, the woman had her mother and boyfriend contact the former employer, represent themselves as prospective employers, and request references. Supervisory personnel made the following remarks about the former employee: “Did not get along well with other employees”; “could work without supervision on occasion”; “was somewhat dependable”; “does not work good with other people”; “is a trouble maker”; “was not an accomplished planner”; and “would not be a good person to rehire.” The woman sued her former employer for defamation. The defendants asked the court to dismiss the case, and the court did so. It observed:

As a general rule an employee reference given by a former employer to a prospective employer is clothed with the mantle of a qualified privilege. A former employer has an interest in open communications with a prospective employer regarding a former employee’s work characteristics. Without the protection of the privilege, employers might be reluctant to give sincere yet critical responses to requests for an appraisal of a prospective employee’s qualifications …. There is a self-evident social utility in free and open communications between former and prospective employers concerning an employee reference. Accordingly, we hold that such communications are protected by a qualified privilege …. However, a statement otherwise protected by the doctrine of qualified privilege may lose its privileged character upon a showing of abuse, namely: (1) The communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statement; or (3) the statement is made without belief or grounds for belief in its truth.

The court concluded that the former employee had failed to prove any of the grounds for disregard of the qualified privilege, and accordingly her lawsuit had to be dismissed. Chambers v. American Trans Air, Inc., 577 N.E.2d 612 (Ind. App. 1991).