Let’s face it—providing ref­er­ences for for­mer employ­ees can feel like walk­ing a tightrope. Employ­ers want to be hon­est, but they also want to avoid get­ting sued. Employ­ees want a fair shot at future jobs, but wor­ry that a bad ref­er­ence will sab­o­tage their chances. And as with many areas of employ­ment law, it’s not always clear where the legal lines are drawn.

In this arti­cle, we’ll explore what West Vir­ginia and fed­er­al law say about job ref­er­ences, the risks of defama­tion and retal­i­a­tion claims, and how both sides can approach the ref­er­ence game with a bit more con­fi­dence (and few­er lawsuits).

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What Employers Can Say About Former Employees

Con­trary to pop­u­lar belief, there’s no law that says employ­ers can’t give a neg­a­tive ref­er­ence. In fact, under both West Vir­ginia and fed­er­al law, employ­ers are gen­er­al­ly free to pro­vide truth­ful, fac­tu­al infor­ma­tion about a for­mer employee’s per­for­mance, con­duct, and rea­son for separation.

That means a West Vir­ginia employ­er can legal­ly say:

• “She was fre­quent­ly late.”
• “He was let go for vio­lat­ing com­pa­ny policy.”
• “She resigned with­out notice.”

As long as the state­ments are truth­ful and made in good faith, there’s usu­al­ly no legal issue.

But if the employ­er exag­ger­ates, spec­u­lates, or says some­thing that’s false or mis­lead­ing, they could be look­ing at a defama­tion lawsuit—especially if the state­ment harms the employee’s abil­i­ty to get anoth­er job.

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Defamation, Tortious Interference, and Employment References

Defamation

Defama­tion involves a false state­ment of fact that dam­ages someone’s rep­u­ta­tion. In the employ­ment con­text, it often comes up when a for­mer employ­er makes neg­a­tive com­ments that cost some­one a job offer.

In West Vir­ginia, the ele­ments of defama­tion are:

1. defam­a­to­ry statements; 
2. a non­priv­i­leged com­mu­ni­ca­tion to a third party; 
3. fal­si­ty;
4. ref­er­ence to the plaintiff; 
5. at least neg­li­gence on the part of the pub­lish­er; and 
6. result­ing injury.

See Work­man v. Kroger Ltd. P’ship I, 2007 U.S. Dist. LEXIS 77974 (S.D. W. Va. Oct. 11, 2007);  Syl. pt. 1, Crump v. Beck­ley News­pa­pers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1984).

Truth is a com­plete defense. So if the neg­a­tive com­ment is accu­rate and based on doc­u­ment­ed facts (like per­for­mance reviews or a dis­ci­pli­nary record), the employ­er has a strong defense.

Tortious Interference With Contract

Anoth­er poten­tial legal claim in the set­ting of job red­fer­ences is tor­tious inter­fer­ence with con­tract. It is a poten­tial­ly dan­ger­ous claim because, strict­ly speak­ing, it does not require defam­a­to­ry state­ments (which must be knowl­ing­ly or reck­less­ly false),

The essen­tial ele­ments to estab­lish a pri­ma facie case of tor­tious inter­fer­ence are: 

• (1) the exis­tence of a con­trac­tu­al or busi­ness rela­tion­ship or expectancy; 
• (2) an inten­tion­al act of inter­fer­ence by a par­ty out­side that rela­tion­ship or expectancy; 
• (3) proof that the inter­fer­ence caused the harm sus­tained; and 
• (4) dam­ages 

Gar­ri­son v. Her­bert J. Thomas Memo­r­i­al Hosp. Ass’n, 190 W. Va. 214, 438 S.E.2d 6 (1993).

While defam­a­to­ry state­ments can be part of the inten­tion­al act of inter­fer­ence, they are not a nec­es­sary ele­ment for a tor­tious inter­fer­ence claim. Defama­tion and tor­tious inter­fer­ence are dis­tinct caus­es of action, and the ele­ments required to prove each are dif­fer­ent. Defama­tion requires proof of false and defam­a­to­ry state­ments, non­priv­i­leged com­mu­ni­ca­tion to a third par­ty, fal­si­ty, ref­er­ence to the plain­tiff, at least neg­li­gence on the part of the pub­lish­er, and result­ing injury. In con­trast, tor­tious inter­fer­ence focus­es on the inten­tion­al inter­fer­ence with a con­trac­tu­al or busi­ness rela­tion­ship and the result­ing harm, with­out neces­si­tat­ing defam­a­to­ry state­ments. Gar­ri­son v. Her­bert J. Thomas Memo­r­i­al Hosp. Ass’n, 190 W. Va. 214, 438 S.E.2d 6 (1993).

Tips for Employers

To reduce the risk, many employ­ers adopt a “name, rank, and ser­i­al num­ber” pol­i­cy, lim­it­ing ref­er­ences to:

• Job title
• Dates of employment
• Final salary or wage rate

That approach min­i­mizes risk, but it doesn’t help for­mer employ­ees who deserve a pos­i­tive reference—and it doesn’t sat­is­fy prospec­tive employ­ers who want real insights.

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Qualified Immunity for Employers

West Vir­ginia pro­vides some legal pro­tec­tion for employ­ers who pro­vide ref­er­ences in good faith.

W. Va. Code § 55–7‑18a applies, in all job ref­er­ence set­tings, a good faith immu­ni­ty for employ­ers, where adverse state­ments are pre­sumed to be in good faith about both for­mer and cur­rent employ­ees. But the good faith immu­ni­ty is lim­it­ed to cir­cus­matc­nes where the for­mer employ­er’s dis­clo­sure is made in writ­ing and a copy is pro­vid­ed to the the employ­er that the state­ment con­cerns. The affect­ed employ­ee may rebut the pre­sump­tion of good faith by estab­lish­ing one of sev­er­al facts, includ­ing that the state­ment was know­ing false, was made with reck­less dis­re­gard for the truth, or was dis­closed in vio­la­tion of law.

Under W. Va. Code § 55–7‑18, a good faith immu­ni­ty applies to licensed res­i­den­tial care facil­i­ties where the state­ment relat­ed to an employ­ee’s care of chil­dren or inca­pac­i­tat­ed adults. The good faith lia­bil­i­ty is lost if the employ­ee proves that the dis­clo­sure was: false and dis­closed with knowl­edge that the infor­ma­tion was false.

Those are sig­nif­i­cant shields for employ­ers who stick to the facts and don’t have an axe to grind. But it doesn’t cov­er inten­tion­al smear campaigns.

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Retaliation Risks Under Federal and State Law

Anoth­er big risk in the ref­er­ence con­text is retaliation.

If an employ­ee engaged in pro­tect­ed activity—like fil­ing a dis­crim­i­na­tion com­plaint, report­ing safe­ty vio­la­tions, or tak­ing FMLA leave—and the employ­er gives a bad ref­er­ence to pun­ish them, that’s like­ly illegal.

Under both Title VII (42 U.S.C. § 2000e‑3) and the West Vir­ginia Human Rights Act (W. Va. Code § 5–11‑9), it’s unlaw­ful to retal­i­ate against some­one for assert­ing their legal rights.

The EEOC has suc­cess­ful­ly pros­e­cut­ed retal­i­a­tion cas­es where an employ­er gave a false or neg­a­tive ref­er­ence after an employ­ee filed a charge or law­suit. The EEOC pre­vi­ous­ly had Enforce­ment Guid­ance on retal­i­a­tion claims, but that guid­ance appears to be no longer on the EEOC web site. The sec­ond Trump admin­is­tra­tion is mak­ing numer­ous changes at the EEOC, and many of the guid­ance and inter­pre­ta­tion pages are no longer on the EEOC web site.

West Vir­ginia law also rec­og­nizes that an employ­er may be held liable for retal­i­a­tion that hap­pens after sep­a­ra­tion from employment.

Fur­ther­more, even if neg­a­tive job ref­er­ences are not action­able as defama­tion or retal­i­a­tion, they may have bear­ing on a plain­tiff’s (for­mer employ­ee’s) job search and claim for emo­tion­al dis­tress, so employ­ers need to be care­ful about the poten­tial dam­age-relat­ed con­se­quences of neg­a­tive job ref­er­ences (at least where there is a pend­ing wrong­ful dis­charge claim).

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Can Employers Be Sued for Giving Positive References?

Inter­est­ing­ly, the answer is yes—under some circumstances.

If an employ­er gives a glow­ing ref­er­ence for a prob­lem­at­ic employ­ee (espe­cial­ly one fired for mis­con­duct), and that employ­ee goes on to harm some­one at the new job, the orig­i­nal employ­er might face a neg­li­gent refer­ral claim.

This has come up in cas­es involv­ing health­care, schools, or posi­tions of trust where a for­mer employ­er failed to dis­close known mis­con­duct or safe­ty risks.

Courts are still sort­ing out when a ref­er­ence cross­es the line into neg­li­gence, but the gen­er­al prin­ci­ple is: don’t lie, espe­cial­ly when pub­lic safe­ty is involved.

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Tips for Employers

1. Adopt a con­sis­tent ref­er­ence pol­i­cy—decide whether HR will han­dle all inquiries or whether man­agers can respond.
2. Stick to doc­u­ment­ed facts—base com­ments on per­for­mance reviews, dis­ci­pli­nary records, or exit interviews.
3. Train super­vi­sors—make sure they under­stand what’s appro­pri­ate to say.
4. Don’t retal­i­ate—nev­er base a ref­er­ence on pro­tect­ed activ­i­ty like fil­ing a com­plaint or lawsuit.
5. Keep records—doc­u­ment what infor­ma­tion was shared and with whom.

And if you’re unsure whether to pro­vide a ref­er­ence for some­one who had issues, con­sult legal counsel—especially in high-lia­bil­i­ty pro­fes­sions like med­i­cine or childcare.

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Tips for Employees

1. Ask what your employer’s ref­er­ence pol­i­cy is—you might be surprised.
2. Request a copy of your per­son­nel file, which West Vir­ginia law allows but does not require (in most cases).
3. Get ref­er­ences in writ­ing—LinkedIn rec­om­men­da­tions or emails can be help­ful in case your for­mer employ­er clams up later.
4. Use pro­fes­sion­al ref­er­ences out­side your last employ­er, like col­leagues or clients.
5. If you sus­pect a bad ref­er­ence, con­sid­er a ref­er­ence-check­ing ser­vice or legal advice.

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Final Thoughts

Employ­ment ref­er­ences can be tricky legal ter­rain. For employ­ers, the best approach is truth­ful, con­sis­tent, and job-relat­ed com­mu­ni­ca­tion. For employ­ees, know­ing your rights can help you nav­i­gate the tran­si­tion with­out surprises.

West Virginia’s laws give some flex­i­bil­i­ty, but the usu­al employ­ment law rules—don’t defame, don’t retal­i­ate, and don’t mislead—still apply. A lit­tle care and doc­u­men­ta­tion go a long way toward keep­ing the peace (and avoid­ing law­suits) when the phone rings ask­ing about a for­mer worker.