Recently, one of our corporate clients received a question about one of their former employees and whether this person had worked for our client. This employee had several disagreements with his immediate supervisor and was thereby terminated. The client didn’t want to acknowledge that the person worked there, so it asked us whether it had an affirmative duty to do this.
Interestingly, the law on this subject is sparse, at best. In a New Jersey Supreme Court case, Singer v. Beach Trading Co., the Court recognized that like many states, New Jersey has not determined whether an employer has an affirmative duty to disclose whether a former employee worked for him or her. However, if an employer does respond and misleads the questioning party, the employer can be liable under common law for negligent misrepresentation along with a possible libel/slander claim(s), as well. Workplace statutes are quiet on this question. Employers need to maintain records of who worked for them for at least six years and report them if asked for the records by the Department of Labor and Workforce Development, but that is it.
Based on the law, the old adage of “If you have nothing nice to say, don’t say anything at all” applies. With a looming possibility of being sued for all sorts of things if you do not provide a positive review for an employee that was fired because of incompetence, an affirmative duty to acknowledge someone worked for you would be forcing someone into a trap where any response could be interpreted as negligent misrepresentation. It would be, to quote another adage, making yourself a “sitting duck”.
To discuss your NJ Business Corporate Employment matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Business Corporate Employment Attorney