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How to Provide a Negative Reference

Some states protect employers acting in good faith.

A man is standing on a person's hand with a star on it.

​When asked to provide a reference for a former employee, solo HR practitioners typically will confirm only dates of employment and job title. 

Many believe it’s best to say as little as possible, because they don’t want to put themselves and their companies at risk of a lawsuit if a former employee thinks the reference was unfair or didn’t portray their work accurately. 

In many states, a company is required to confirm only the date of hire, the date of termination and whether the individual is eligible for rehire. 

But many hiring managers say they would like to be able to verify more than just a candidate’s work history.

“It’s easy for a job seeker to claim skills they may not have or expert-level experience where they are still a novice, and it’s tough to get information about their effectiveness from past employers,” says Walter Sabrin, senior vice president of recruiting services for VensureHR, a professional employer organization in Chandler, Ariz.

Receiving short and generic responses during a reference check makes it difficult for potential employers to understand the employee’s strengths and abilities, and it can potentially lead to bad hiring decisions, says Catherine Castro, senior HR and recruitment manager at 20four7VA, a virtual assistant staffing firm in Berlin, Md.

In fact, 76 percent of senior managers admit to recruiting the wrong candidate for a role and 64 percent say the negative impact of a bad hire is more severe now than it was before the pandemic, according to research by global staffing firm Robert Half. 

However, HR professionals can divulge more about former employees than just dates of service and titles without putting their companies or themselves at risk, provided they are offering accurate and unbiased information, HR experts say.

Understand State Laws

There are no federal laws that address what an employer can or can’t say about a former worker. Many states, however, have enacted legislation that gives employers qualified immunity when providing information for a reference check. There’s a caveat: The immunity is lost if it can be shown that the employer knowingly or recklessly provided false or misleading information or acted with malicious intent, says Molly L. Kaban, a partner at law firm Hanson Bridgett in San Francisco. 

Other states have few or no protections for employers. Massachusetts recently enacted legislation that provides qualified immunity for health care providers, she says, while New York state still doesn’t offer any employers qualified immunity. To win a lawsuit, an employee in New York state would need to show only that an employer negligently made a false statement about them, she notes.

Kaban adds that she has never encountered a reference-check lawsuit during her career. As long as employers keep references factual, the risk of being sued is low, she says, particularly in states with qualified immunity. 

“These qualified-immunity statutes were created to allow the employer to give an honest reference,” she says.

The key is to avoid inserting opinion when giving a reference.

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“Stick to the facts, and avoid giving any opinion that could be construed as either positive or negative,” says Kimberley Tyler-Smith, vice president of strategy and growth at Resume Worded, an online career platform in New York City. 

Subjective opinions, such as whether the employee is suited for the job they’re being considered for, should be avoided, says David Aylor, founder and CEO of David Aylor Law Offices in Charleston, S.C. Additionally, any comments should be backed up with supporting evidence.

“It is much better to give a balanced overview of the employee and not attempt to sway the prospective employer in any direction,” he says.

Be mindful that whatever is said during a reference check has the power to advance or stymie someone’s career, notes Laura Mazzullo, owner of East Side Staffing in New York City. 

“We all have subjective opinions about what makes a candidate great,” she says. “Someone’s best employee is someone else’s worst employee. You can help the other hiring manager by being constructive and specific in your feedback.”

Highlight areas of strength as well as areas where the candidate might need to improve, while understanding that the job the candidate is being considered for might require different skills than the one they held at your company, Mazzullo explains. 

Be Subtle

In some situations, HR might want to discourage a hiring manager at another company from making a job offer because of a pattern of bad behavior or poor job performance, says Jill Santopietro Panall, SHRM-SCP, owner of 21 Oak HR Consulting LLC in Newburyport, Mass. 

However, rather than getting into specifics or coming right out and saying, “Don’t hire this person,” there are ways to send a subtle message that the candidate isn’t a good employee. For instance, Panall suggests saying, “I can give you those dates and nothing more. This is a person I don’t wish to discuss further.” 

Stating that someone isn’t eligible for rehire also sends a clear signal without getting into details. When employees sever ties with the company, Panall says, HR should sort each employee into one of three categories: do not rehire, would rehire and would love to rehire. 

HR has an obligation to let another company know when an employee has legal restrictions, such as a restraining order, or if there was any workplace violence or crime committed, says Chad V. Sorenson, SHRM-SCP, president of Adaptive HR Solutions in Jacksonville, Fla. 

Kaban warns that a prospective employer can sue another employer for providing negligent information if certain facts are withheld during a reference check, such as if the person committed a crime or was violent while working at the previous employer.

“If safety is a concern, the best thing for an employer is to give an honest reference,” she says.

Share with Care

HR should never divulge sensitive or confidential information about an employee without their consent. This includes any medical information, such as whether an employee has a history of mental health issues or the number of times someone took parental leave, Panall says. Steer clear of discussing someone’s appearance, age, weight, gender, sexual orientation and even their salary, she adds.

If someone leaves your company in good standing and would like a reference for a future job opportunity, ask them to sign a form stating that their colleague or manager may serve as a reference if the company is contacted, advises Rachel Alansky, owner of consultancy Seamless HR Solutions in Arlington, Va. 

However, Kaban says it might be a good idea for all reference checks to be directed to an HR professional, who will be more familiar with applicable laws. The HR professional may want to consult with the former employee’s supervisor to give an appropriate reference that goes beyond confirming dates of hire and title.

If a former employee has any outstanding claims or lawsuits against the company, be extra careful to avoid making comments that could be interpreted as a bad reference, Panall says.

In those cases, she advises, “consult a lawyer, because if the employee could make the case that you’re bad-mouthing them, it can impact the company’s suit.”  

Lisa Rabasca Roepe is a ­freelance writer based in Arlington, Va. 

Image by Nuthawut Somsuk / istock


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