5 Tips for Navigating the Employee References Minefield

 True or false: When asked to give a reference for a terminated employee, you should provide only the person’s name, dates of employment and, if asked, salary level? True. Furnish just about any other information and – assuming it’s negative – the former employee could sue your company for, among other things, defamation. (Fisher & Phillips)

We’ve all had ‘em – reference requests from former employees can leave a person wondering what to say … and, perhaps more importantly, what not to say. For your consideration:

1. Don’t be overly positive:

“It is okay to give a positive reference, but beware of the pitfall. The prospective employer will inevitably ask about the employee’s shortcomings. If you discuss weaknesses, you’ve put your company at risk for a lawsuit.” (Fisher & Phillips)

2. Don’t be too negative, either:

“Employers who provide negative reference information about former employees can be vulnerable to claims for defamation and retaliation (yes, the law says you can be liable for retaliation against a former employee as well as a current one), and under state anti-blacklisting statutes.” (Constangy, Brooks & Smith)

3. Consider obtaining employee authorization for references:

“… the Connecticut Supreme Court … held that if the ex-employee has signed a release authorizing his former employer to respond to a request for information about him, the former employer has a “qualified privilege” for any comments it may make. A qualified privilege means that the former employer cannot be sued for defamation (or related claims like tortuous interference with business expectancies or infliction of emotional distress) unless the ex-employee can prove that the comments were made with actual malice.” (Pullman & Comley)

4. Be very cautious when communicating doubts about the former employee:

“Is there a way to safely tip off the prospective employer that you wouldn’t recommend the former employee? Again, the safest approach to protect your company is to provide just ‘name, rank and serial number.’ If you feel compelled to provide more, the safest way to send the message that the prospective employer should look elsewhere is to simply state: ‘Do you have any other candidates you’re considering?’” (Fisher & Phillips)

5. Talk to a lawyer if you need to send a clear warning:

“[I]f an employer believes that an employee creates a risk of harm to others, the employer should immediately seek legal advice so that a plan of action can be implemented that decreases the risk of harm to employees or other third parties without increasing the risk of litigation.” (Rumberger Kirk & Caldwell)

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