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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.
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 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.
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.
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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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.
Responding to employee reference requests requires careful consideration to protect your company's interests and maintain legal compliance. Axcet HR Solutions, the trusted provider of PEO services and HR consulting, can guide you through this process with expertise and professionalism. Contact us today to ensure your reference responses are accurate, fair, and aligned with best practices. Our experienced team will help you streamline reference request procedures, provide guidance on legal requirements, and minimize potential risks. Choose Axcet HR Solutions as your partner in navigating employee reference requests, and let us handle the complexities while you focus on your core business. Reach out now to optimize your reference response process.
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