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When Giving References, How Truthful Can You Be?

Be aware of your rights and responsibilities under state law.

Let’s be real: The employment relationship doesn’t always end on a positive note. So what can HR professionals lawfully say when they’re asked to vouch for a former—perhaps even infamous—employee as part of a reference check? Can they share that someone was fired or a poor performer? 

The answer is usually yes, as long as you’re being truthful—but be aware of your rights and responsibilities under state law.

Most states have enacted legislation that gives employers qualified immunity when providing information for references. That means you’re protected from civil liability if you’re responding in good faith—in other words, without knowingly providing false or misleading information or acting with malicious intent—explained Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco. 

But you could still face a defamation (libel or slander) lawsuit from the worker or a negligent referral lawsuit from that person’s prospective employer if you don’t limit the type of information provided and make sure it was given to the correct person, said Sage Knauft, an attorney with Walsworth in Orange, Calif.

In states without immunity statutes, such as New York and Massachusetts, it’s trickier to provide reference information beyond the basic dates of employment. But you may want to seriously consider giving more details if the reason for separation includes conduct that jeopardized others’ safety, noted Joan Rennekamp, a human resource consultant with Lewis Roca Rothgerber Christie in Colorado Springs, Colo. 

[SHRM members’-only toolkit: Conducting Background Investigations and Reference Checks]

Here are some tips from legal experts on how to avoid liability when providing job references: 

Review all applicable state laws. This includes those that apply where the employee resides, where the prospective employer is located and in all states in which your company operates.

Maintain control of the information. Limit who is allowed to give references and what information can be provided. Some experts recommend that all reference requests go through a single person, usually an HR professional. 

“However, we should all keep in mind that all employers need information about past performance and behavior in order to determine if an individual is a good fit for the position,” Rennekamp said. 

Be consistent in how requests are handled. Work to ensure that the same process is followed for each reference request to avoid any claims of discrimination, Knauft recommends. All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee, he said.

Stick to the facts. Avoid giving opinions about the employee’s suitability for a prospective job, Knauft said, and use only documented evidence to share information related to an employee’s job performance.

Get permission from the employee. It’s a good idea to require all job candidates to complete an application form that includes a release for employers from which they might request a reference, Rennekamp said.

Illustration by Mike Austin for HR Magazine.

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