Can jobs give bad references

The job relationship does not always end happily. So, how should employers respond to a reference check? Can they mention that someone was dismissed, was regularly late, or performed poorly? Employers are typically genuine during a reference check, but they should be aware of their legal rights and duties.

There are no federal regulations governing what an employer may or may not say about a worker. However, several states have passed legislation that provides employers with limited protection when submitting information for a reference check. According to Molly Lee Kaban, an attorney at Hanson Bridgett in San Francisco, these laws usually ensure that an employer is free from civil responsibility when it answers to a reference check in good faith. However, immunity is lost if it can be shown that the employer intentionally or carelessly gave false or misleading information or behaved maliciously.

According to Sage Knauft, an attorney at Walsworth in Orange, Calif., none of these provisions provide the employer with total protection. If care was not taken in restricting the sort of material supplied and ensuring that the information was delivered to the proper person, the employer might face a defamation (libel or slander) case from the employee or a negligent referral claim from the potential employer.

States without immunity statutes, such as New York and Massachusetts, make it more difficult for employers to offer reference information to potential employers, he noted.

Employers may need to be forthright if the grounds for the separation include behavior that risked the safety of a kid or vulnerable adult, according to Joan Rennekamp, a human resource consultant with Lewis Roca Rothgerber Christie in Colorado Springs, Colo.

As a result, employers should be conversant with the legislation of the states in which they operate.

Immunity

Employers should be aware that the qualifications for the immunity defense to a lawsuit vary by state. Some states, such as Hawaii, have fairly basic restrictions, according to Kaban. The employer is believed to have acted in good faith, and any job-related information (including views) is presumed to be protected unless it can be shown that the employer willfully gave inaccurate or misleading information.

Other states' laws are more convoluted. In Arkansas, for example, the employer must seek written authorization from the employee before responding to a reference check. Only specific information is protected under Arkansas' immunity statute, including as dates of employment, salary rates, job assignments, details of the most recent performance assessment, workplace violence threats, and the cause for separation. Missouri grants immunity only when an employer answers in writing to a written request for reference information, and the business must furnish the employee with a copy of the written response.

"Whether necessary by law or not, obtaining written permission from the employee is fantastic protection," Kaban said.

Employers should also ask all candidates to submit an application form—in addition to or instead of a resume—and include a release for employers and other organizations from whom they may seek a reference, according to Rennekamp.

HR's Function

Employers should keep control over the information that their company disseminates, according to Rennekamp. They might do this by limiting who can offer a reference or what information can be shared. "However," she continued, "we should all bear in mind that all employers want information regarding prior performance and conduct in order to decide whether a person is a suitable match for the role."

To prevent legal responsibility while giving employment references, Knauft suggests the following steps, especially for multistate employers:

Only one individual, often a certified human resources professional, should be allowed to offer employment references. This individual should study the relevant state legislation in the state where the employee lives and where the potential employer is situated. To prevent any charges of discrimination, ensure that the exact same procedure is followed for each employment reference request.

All disclosures should be given in writing, only upon written request from the potential employer and with the employee's written approval.

Provide just factual facts and refrain from expressing an opinion regarding the employee's fitness for a new position.

As the foundation for the information presented to the potential employer, use recorded proof of the employee's work performance.

Employers should not inquire or answer inquiries regarding whether an employee is eligible for rehire, according to Rennekamp. "The response you get may not suggest anything other than how well the person providing the reference liked the individual and will almost likely not include enough facts to make a hiring decision on."