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Terminated employees often will nevertheless use previous employers as references for future jobs. This can place employers in difficult positions because they worry about being truthful when discussing the performance of employees they fired. The primary consequence that concerns them is the potential for a defamation lawsuit. Bear in mind, however, that defamation suits are very difficult to win because damages could be hard to prove and because truth is an absolute defense to defamation allegations. Defamation claims must be commenced within one year after the defamation occurs, which gives the potential plaintiff relatively little time, particularly because there aren’t too many lawyers who are willing to take small defamation cases. Also, statement that are pure opinions generally are not considered defamatory, although there are exceptions to this.
The Colorado Legislature actually has passed laws to protect employers who are truthful about past employees from being sued. Under C.R.S. 8-12-114(3), employers may not be sued when they reveal information about a current or former employee’s job history or job performance to prospective employers at the request of the prospective employer. The exception to this is if an employer provides untrue information. This statute also says that an employer who provides written information to a prospective employer about a current or former employee must provide that employee with a copy of the writing if the employee requests it. This is why we generally advise employers against sending written information, unless it is a written reference that is genuinely supportive of the employee.