After employees move on – either by your choice or theirs – what should you say when someone from another company calls to do a reference check on one of those former workers? Before you speak up about lackluster job performance or difficulty working effectively with colleagues, it’s important to know your rights and responsibilities under the law.
Federal Employee Reference Request Response Laws
On the federal level, no laws prevent you from giving out information on a former employee’s performance. In some states, under certain circumstances, former employers are even required to provide prospective employers with references.
But, otherwise, many companies maintain “no reference” policies aimed at reducing the risk of a discrimination or defamation lawsuit. If, for example, a former employee determined that you gave a negative reference that led to a job rejection, it’s possible the person could take legal action against your business.
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Reference-Related Discrimination & Defamation Lawsuits
Reference-related discrimination and defamation lawsuits are difficult to prove, and the law safeguards an organization whose reference has been factual and true. Still, responding to a lawsuit consumes time, interrupts daily business and can be expensive. For that reason, HR consultants and employment law attorneys typically recommend that employers provide no information during a reference check beyond confirming the former worker’s title and employment dates.
Missouri & Kansas Reference-Check Laws
Employers in Missouri and Kansas have “qualified immunity” when they provide reference check information in “good faith.” Neither state gives employers complete immunity. And employers lose all immunity if it can be proven that they knowingly provided false or misleading information.
Risks Associated with Positive References
Surprisingly, positive recommendations can come with legal risks, too. Say that a department head terminates “Jolene” for poor performance, but “Jolene’s” direct supervisor later gives her a glowing reference. If Jolene then decides she was terminated based on her gender, age or some other protected class, her supervisor’s positive recommendation may well be a primary exhibit in her discrimination case against her former company.
It's also possible that an employee who was a star at one organization won’t be a high performer at the next. While a positive recommendation doesn’t pose a legal hazard in this case, Axcet HR Solutions has seen situations where a new employer contacts a former employer to complain that a hire didn’t live up to the expectations set by the reference.
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The Argument for Title & Dates of Employment
It’s therefore prudent to simply provide a “title and dates of employment” reference, even for stellar former employees. To prevent a prospective employer from concluding that a neutral reference indicates that the employee was a poor hire, clarify that company policy prevents you from providing additional information.