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Dealing With A Fired Employee

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What to Tell Prospective Employers and Coworkers

When you let an employee go, you may hear from prospective employers later on seeking a reference from you. You may also have to talk to coworkers of the former employee to explain why s/he was let go. These can be delicate situations that must be handled with care to avoid lawsuits for defamation or wrongful termination, even if you followed your employee firing policy when you terminated the employee.

Why Worry about Defamation Lawsuits?

You should worry about a defamation suit because they can be relatively easy to prove. A former employee only has to show that you intentionally damaged her reputation by saying negative things about her that you knew were false. If you say something unflattering about an employee that you are not positive is true and you cannot prove is true, there is a good chance that the former employee will win her case. 

An Example of How Easily Things Can Go Wrong

An example may help to understand why defamation suits should be a concern. Suppose you fire an employee because you suspect him of stealing, but you cannot prove that he stole anything. If a prospective employer calls and asks you for a reference and you say the former employer stole things from work you could be liable for defamation. 

What To Do if a Prospective Employer Asks You for a Reference

If a prospective employer asks you for a reference for an employee you fired, you will be in the difficult situation of wanting to tell the truth but also worrying about being sued for defamation. The best thing to do is to say as little as possible and only say things you know are true and you can prove. Here are some additional tips to reduce the likelihood of defamation suits:

  • Inform the employee that you cannot provide a positive reference - While this seems like it should be obvious to the employee, inform him that if asked, your reference won't be good.
  • Try not to say much at all - Many employers have adopted a policy of only providing dates of employment, job responsibilities, and salary to prospective employers. 
  • Report only the facts - Don't provide opinion or commentary on why you think your former employee didn't work out.  Only say things that you can prove and that have been documented in some way. For example, if you can prove the employee was late for work many times, you could say he had tardiness issues.
  • Be kind in what you have to say - Don't go out and unnecessarily trash your former employee. Many states have laws that protect employers from defamation suits as long as they provide references in good faith. Trashing a former employee's reputation surely is not acting in good faith.
  • But don't be overly generous - There's no need to make up a positive reference. If you make a former employee sound really terrific when you knew he was a bad apple, then his next employer could sue you.

What to Do When Coworkers Ask about the Fired Employee

Firing an employee can be very unsettling for her coworkers. You should make some kind of statement to your employees regarding the fired employee, either in person or in writing. Keep what you say brief and don't go into the details of what happened and/or why. Tell your employees that you wish to respect the privacy of the former employee and that any questions should be directed towards you. 

Do I Need a Lawyer to Deal with a Former Employee?

An employment lawyer can advise you on dealing with former employees, whether it relates to providing a reference or figuring out what to say to your other employees. Also, if a former employee files a defamation or wrongful termination suit against you, a lawyer with knowledge of employment law can represent you. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 04-18-2018 08:18 PM PDT

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