BOP NEWSLETTER • September 2023

Q: May an employer be sued for refusing to provide a post-termination reference?

A: Probably not, depending on the way the refusal is worded and to whom the refusal is communicated. Post-termination references may expose businesses to defamation lawsuits if they contain false information about individuals that could harm or damage their reputation – typically in a manner that affects the individual’s job prospects. Thus, if an employer simply refuses to provide a recommendation, without making any false statements about the employee in the process, it is probably shielded from a defamation lawsuit. If, however, the business refuses to provide a recommendation and instead sends an email to the new employer and includes a false statement about a former employee, then the company may be exposed to a defamation lawsuit.

Q: What should an employer do if an employee refuses to comply with a dress code?

A: An employer should attempt to speak with the employee and explain why it is important for the employee to comply with the dress code. If the employee’s failure to comply with the dress code is based on the employee’s religious beliefs or membership in another protected class (e.g., locks and twists associated with race), the employer should try to begin what’s called a “good faith interactive process” to make a reasonable accommodation. If the employee still refuses to comply with the dress code and no accommodation is required, the employer should discipline the employee in accordance with its disciplinary policy.