Legal Question in Employment Law in Washington

Re: Giving references stating if they are motivating

Most likely no. The statement that your former (current?) employee is not very motivated is most likely a matter of opinion and not a factual assertion whose falsity can be demonstrated.

The typical cause of action that employers must avoid when giving an employment reference is defamation. Defamation is the making of a false factual statement (if verbal, it is known as "slander", if written it is known as "libel") that tends to lower one's reputation in the community and that causes harm to the individual. The truth of an opininon is generally not capable of proof so opinions generally do not give rise to a cause of action (basis for a suit). Furthermore, truth is an absolute defense to defamation.

However, even if an employer is certain that the statements it is making are a matter of opinion or are true, employers must still be careful not to violate "blacklisting" statutes. These statutes prohibit employers from interfering with a former employee's prospective employment. The violation of such statutes often give rise to civil penalties. It is unclear whether saying that a former employee lacks motivation would violate any "blacklisting" statute. The statute is old and there are few cases interpreting it. It is my guess that more proactive conduct is required, rather than just responding to an inquiry. But, it is risky to assume safety in such a position.

As such, the more prudent practice in regards to giving references is to give minimal innocuous information (name, dates of employment, position, rate of pay) and to do so in writing so that there is no dispute as to what exactly was communicated.