A claim of tortious interference can be brought when a third-party acts in a way that interferes with a business relationship or expectancy. The Michigan Court of Appeals recently laid out the elements necessary for a former employee to establish a claim of tortious interference against a former employer. Ukpai v. Cont’l Auto. Sys., Inc., Docket No. 350294, an unpublished Michigan Court of Appeals opinion delivered on December 12, 2020.
In this case, the plaintiff had applied to a new company that requested an employment reference from plaintiff’s previous employer. The previous employer failed to provide a reference, plaintiff did not get the job, and this action commenced. The Court first acknowledged that an interview alone was not sufficient to satisfy the business relationship or expectancy element of tortious interference. But then discussed a former employer’s obligation to provide a reference.
In short, the Court rules that the previous employer is under no obligation to provide a reference for a former employee. The Court found that MCL 423.452 does not obligate a former employer to provide a reference to a former employee’s prospective employer. As there was no obligation, it was not wrongful for the previous employer to fail to provide a reference.
The Court further protects the previous employer. The court ruled that even if the previous employer had given a negative reference, with actual negative remarks or by failing to give a reference, the employer was protected. An employer who divulges information about a former employee’s job performance to a prospective employer is protected by a qualified privilege. To refute this privilege, the employee would need to prove that the employer knew they were given false information or acted with reckless disregard for the truth. This is a difficult task for an employee.
Key Takeaway
An employer is protected against action from a former employee for either not providing an employment reference or from providing a negative one. An employer is under no obligation to give a reference under Michigan law. And an employer has a qualified privilege in the event they gave a negative one that negatively impacted the employee.
The full text of the opinion can be found at:
https://law.justia.com/cases/michigan/court-of-appeals-unpublished/2020/350294.html
