When providing a reference for a former employee, you don’t have carte blanche.
If you’ve ever received a call or email asking you to provide a reference for a former employee, you know that such questions can put you in an awkward position. Your instincts tell you just to be honest, but you worry because you don’t know what you can say.
This is a good point because the law is nuanced. Though honesty is a good policy, a legally compliant employment reference requires more than saying whatever comes to mind about a past employee.
If Asked For a Reference, Follow Company Policy
First, you should be aware that some companies have policies mandating neutral references, or they may require references to flow through a certain department, such as human resources. This is because false, misleading, or discriminatory references for past employees can give rise to liability for claims such as negligence, defamation, tortious interference with business relationships, or civil rights violations under state or federal law.
In such cases, company policy may only allow you to confirm the position and dates of employment. Similarly, settlement agreements with past employees sometimes contain contractual restrictions about references to prospective employers. Therefore, the first thing you should do before giving a reference is to confirm that there are no limitations on your ability to provide the information requested.
No Restrictions? Proceed With Caution
Assuming no such restrictions exist, you should still take care with what you say. You might wish to avoid anything negative, but that’s not always the right thing to do. For instance, if the information relates to safety, then revealing adverse information may be necessary because of risk management and personal ethics.
The good news is that Kentucky and Ohio both have statutes offering legal protections to employers who offer references about past employees. KRS 411.225; ORC 4113.27. Notably, however, the protections in both statutes only apply when the reference was not recklessly or intentionally false or misleading and not the product of retaliatory or discriminatory practices prohibited by civil rights statutes.
Keep References Factual and Avoid Opinions
The safe and compliant way to offer a substantive reference about a past employee is to ensure that it is factually and demonstrably accurate, free of opinions, and balanced. If you choose to offer a reference, stick to the facts that you could demonstrate and prove if your statements were ever challenged.
Finally, be cautious and offer a balanced view of the facts. If you offer a reference, you are providing information, not building a case for or against the hire by selecting only positive or negative information.
To summarize, here are the steps to consider when you get a request for a reference check:
- Determine if any restrictions exist for offering references under policy or contract;
- Listen carefully to the question when a reference is requested.
- Tailor your answer to address only the question asked or set boundaries or limits if needed.
- If you choose to offer a substantive reference, ensure the reference is:
- Factual and verifiable;
- Free of opinions and judgmental or conclusory language;
- Free of irrelevant information or personal anecdotes; and
- Avoids any comments that could be construed as discriminatory or retaliatory under civil rights laws; and
- Balanced in terms of the factual content offered.
References can be a tricky area to navigate, but understanding the legal guidelines can help protect both employers and employees. As a rule, I recommend that employers consult with legal counsel before providing references to ensure compliance with all relevant laws and regulations.
