It's 9am and you're still on your first cup of coffee. The phone rings, and you hear the dreaded question: "Good morning, I'm calling for a reference for one of your former employees." You lean back in your chair and wonder: Which employee? Should I just give a vanilla reference? Should I refuse to respond at all? Can I tell them what I really think?
Responding with more than baseline information is fraught with hurdles. On one side of the coin: If I give a bad reference, am I opening the door to claims of slander or some other tort? But on the other side: If I don’t say anything at all, when I usually give references, will they say I’m discriminating or retaliating? For good reason, this phone call often triggers an anxious feeling in the employer.
Needless to say, the most important thing is to be honest. And although situations vary, keeping it neutral is usually the best bet. Occasionally an exception might arise that you’ll want to discuss with a trusted legal adviser—maybe an employee was terminated for a serious offense, such as violence or stealing from the company, or maybe an employee was laid off through no fault of the employee. Generally, though, the safer approach is to steer away from danger zones and limit responses to basic information. Some states have specific laws that provide certain protections to employers giving references (see, for example, Tenn. Code Ann. § 50-1-105). Generally speaking, though, giving much more than a neutral reference may only invite headache down the line.
Companies should try to have a policy laying out how, and to what extent, references may be provided. Consistency is key, so that no inference can be drawn from either saying too much or too little. Being aware of the legal risks, and working with in-house or external counsel to develop a good policy, can help companies avoid unnecessary headache.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
