Don’t Give a Reference You’ll Regret

A person can be made or broken by his or her reputation. That simple truth is hardly more true than when looking for employment. The importance of making good impressions that improve one’s chances of getting a job puts a tremendous amount of importance on obtaining good references. Many employers don’t even think twice about giving a reference, even on behalf of former employees with whom they may not have parted amicably. However, this ordinary, common action could expose an employer to significant liability. Say the wrong thing, and you may find yourself facing litigation.

Defamation

It can be difficult for most people to keep opinions separate from facts. Offering an unsubstantiated opinion about another is an easy way to get hit with a claim for defamation. Defamation is intentionally making harmful statements about another that you know or strongly suspect to be untrue. Even if you say something about an employee that is verifiably factual, if you couldn’t have known it was true, it could still be argued that you defamed the employee.

Protecting Yourself When Firing an Employee

It may go against your good nature, but consider informing an employee that you will be unable to provide a reference. In most cases, that should be enough. The average person isn’t going to use an unwilling person as a reference. You could take the idea further by telling an employee that you would only give them a bad reference. That should discourage them. Do it in writing and retain a copy for your records. It could serve as evidence in the event a terminated employee defies all logic and has their prospective employer call you for a reference anyway.

If other employees press you for details on their coworker’s termination, the best option is not to answer at all. However, if you feel you must respond, just tell them you had to let the person go and leave it at that. If you must make a statement, keep it short and neutral in tone.

It may also be a good idea to have the employee sign a release protecting you from lawsuits. Incorporate language that grants you the right to provide information to other employers and that indemnifies you from any damages that may result.

When Employers Call

If you do get contacted by another employer seeking a reference, stick to the facts. Avoid offering opinions or unflattering statements that could create problems for you. Here are some simple pointers to keep you from saying the wrong things:

• Keep it short. One of the easiest ways to keep yourself from saying something regrettable is to say as little as possible. Confirm your former employee’s dates of employment, title, and salary at time of separation, and leave it at that.

• Be factual. Don’t offer any opinions or speculation, particularly in terms of personal, unsubstantiated theories about negative things you believe the employee may have done, but you can’t prove.

• Avoid negativity. Do your best to remain neutral and dispassionately provide the information requested in good faith. Providing the information in good faith is helpful when defending against a defamation suit in most states.

• Don’t hide flaws. You want to avoid speculation, denigration and other negative statements, but you don’t want to go too far and begin hiding serious, real problems about your former employee. You could end up being sued by the new employer for misleading them, especially if the employee commits serious misconduct that may continue a pattern of behavior you had experienced when he or she was in your employ.

Talk to an Employment Law Attorney

If you’re contacted for a reference, it may be best to consult with an attorney with employment law experience. He or she should be able to help you determine whether to honor the request and what sorts of things would be okay to say.

Legal Disclaimer

The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.