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Similar to What is the liability of a person who signs as a witness? does a reference for a candidate employee have liability for what they say about the candidate?

I've seen some companies ask references to fill out a form where at the bottom they sign agreeing the information they are providing is correct and true. To my understanding lying isn't illegal. So does the fact that a reference sign something claiming they aren't lying have an affect?

For the purpose of this question assume the person acting as a reference isn't under obligation not to be a reference (e.g. from their current company's policy) .

  • In what country? – Ron Beyer Jul 19 at 4:40
  • You can certainly get sued. That's why many US companies have restricted references to dates of employment and job title only. – Hilmar Jul 19 at 16:31
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does a reference for a candidate employee have liability for what they say about the candidate? To my understanding lying isn't illegal.

Lying is unlawful to the extent that the liar's deliberate intent to mislead other(s) causes or is likely to cause unwarranted harm. This is regardless of whether "the person acting as a reference isn't under obligation not to be a reference". Lies can directly harm the candidate and/or the company, and others indirectly.

The harm to the candidate is known as, or comes in the form of, defamation. Depending on the jurisdiction, an intent to mislead might not even be a prerrequisite for liability. For instance, Michigan statute MCL 600.2911(7) allows suits for libel or slander if "the defamatory falsehood concerns the private individual and was published negligently" (emphasis added). The liar's intent to mislead and his knowledge of the falsehood of his statements can only worsen the harm inflicted and his liability therefor.

Likewise, the liar can be liable to the company for inducing it to hire a candidate the company would not have hired had it known the truth. Liability ensues when the hired candidate makes the company incur losses which would be prevented by relying on a truthful reference.

If the reference is truthful, the chances for liability are significantly narrower. These scenarios typically involve matters of privacy or disclosures that are protected/sanctioned by law.

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  • According to these answers, lying generally isn't illegal law.stackexchange.com/questions/19163/… If the lie doesn't cause harm, but someone benefits from the lie, is it still illegal? – bipbop11 Jul 19 at 17:44
  • @bipbop11 Harmless or immaterial lies are in and of themselves not actionable/unlawful. But the conclusion that "lying generally isn't illegal[/harmful/material]" is quite a stretch. In the linked question, the recruiter sought to act fraudulently toward his client(s), whence it would be risky & unlawful for that OP to knowingly second the recruiter's deceit. Tricking a third party into retaining a candidate without the required skills set can lead to losses such as (1) paying too much for candidate's actual skills, and/or (2) hiring someone who does not have what it takes to do the job. – Iñaki Viggers Jul 19 at 18:49
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This (Canadian) article gives an overview of reference-letter liability. First, the writer has a duty of care to the subject of the letter. Both false statements and material omissions of true statements can cause harm, and the subject can sue over either. Stating that Smith was janitor when he was a vice president of the firm (in applying for a comparable executive position) causes harm through a false statement. Similarly, stating that he was a janitor when he started as a janitor and worked his way up to a VP position is a material omission. There may also be a duty of care to the recipient of the letter, so that if the letter states that Smith was a VP but he was only a janitor, the recipient may be harmed by relying on that claim. See also this analysis from U. Alabama, with various case law citations of writers omitting material negative facts.

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