Reference requests have come under scrutiny in recent years. This because negative references can be deemed an adverse employment action—and thus set the stage for a retaliation claim. On the other hand, even a good reference could be problematic. For example, if a good reference is given for an employee who was terminated due to poor performance, the argument of poor performance is substantially weakened, opening the door to a wrongful termination claim.
With such risks, many employers are opting to avoid personalized references altogether. Here are some tips for handling reference requests.
Tips for Handling Reference Requests While Minimizing Risk
Here are some tips for handling reference requests while minimizing risk:
- Route all calls inquiring about former employee’s employment to a designated, trained person, preferably in management and/or HR.
- Information provided should be limited to: the position held, the dates of employment, and whether employee quit, was terminated, or laid off due to lack of work. Do not provide any further details.
- “If the caller wants more information, let them know that you’ll have to have a release signed by the employee.” Marc Jacuzzi advised in a recent BLR webinar.
- “If you feel compelled to give out additional information, stick to the facts and document your conversation” with the prospective employer, Jacuzzi told us.
- There’s no such thing as a personal reference; it will be an “employer” reference if it comes from someone at the employer. As such, employers should have policies regarding any employees giving references for other employees—even on social media sites such as LinkedIn.
- If you still wish to give a positive reference for a former employee, advise the employee that you will provide a letter of recommendation if requested.
- Even with neutral references, it’s difficult to avoid saying too much. If the person on the phone keeps pushing after you’ve stated your policy, reiterate your policy on what you will provide and nothing more.
For more information on handling reference requests without increasing risks, order the webinar recording of “Management and Discipline: How to Manage Well and Fire Without Fear.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.