The Forgotten Role of Consent in Defamation and Employment Reference Cases

60 Pages Posted: 18 Aug 2014 Last revised: 3 Nov 2014

See all articles by Alex B. Long

Alex B. Long

University of Tennessee College of Law

Date Written: August 17, 2014


As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of Torts has been highly influential in shaping the development of the defense of consent in the defamation context. This article looks at the consent defense within the context of employment reference cases. Specifically, the article examines the consent defense as described in the Restatement from an historical perspective and argues that the authors fundamentally misstated the law in a manner that has had negative consequence for employees who have been the victims of defamatory references.

Keywords: Defamation, References, Employment, Torts, Consent, Waiver

JEL Classification: J00, J60, K12, K13

Suggested Citation

Long, Alex B., The Forgotten Role of Consent in Defamation and Employment Reference Cases (August 17, 2014). Florida Law Review, Vol. 66, No. 719, 2014; University of Tennessee Legal Studies Research Paper No. 253. Available at SSRN:

Alex B. Long (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Ave.
Knoxville, TN 37996
United States

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