Employment References

Only the COO or the CFO may give employment references for former employees. Other employees, even the former employee’s supervisor, are not allowed to give employment references. The HR Director is authorized to supply basic information such as dates of employment, job title, and final salary, if that’s all that’s being requested by the caller, but may not answer any other questions.

There is a difference between speaking as a professional reference and speaking as that employee’s employer. To be clear, none of you are the employer of anyone who works here except the owners of the business. Being that person’s supervisor does not mean you were their employer.

GIVING A PROFESSIONAL REFERENCE

You can act as a professional reference for a former employee as their coworker, if you make it clear that you are not representing this company and were not the employer of the former employee.

Providing references for former employees is easy if we parted on good terms. If we had to fire an employee, however, it can be a difficult decision about how honest we should be with the former employee’s potential new employer. If we tell that potential employer anything about the former employee that we can’t verify as factually accurate, we may be facing a lawsuit.

Defamation Lawsuits

To prove a defamation case, a former employee must show that we intentionally damaged his or her reputation by making harmful statements that we knew weren’t true. Pretty much any negative comment we make can qualify as a harmful statement that intentionally damaged the employee’s reputation.

Defamation isn’t just limited to factually untrue statements about a former employee. If we tell the potential employer things that we suspect or strongly think are true, but can’t actually prove, then that may qualify as a statement that we “didn’t know was true”. Keep unflattering comments to yourself, and really just stick to the verifiable facts.

What to Do When Firing an Employee

1. First, when we fire an employee, tell them up front that we won’t be able to provide positive references. This alone can avoid a bad situation, since only a really daft employee would request references from us after being told that we would give him or her negative references. If it comes down to a lawsuit later on, it will be helpful to show that we in fact told the employee that we would not give them a positive reference, so make sure we tell the employee in writing and keep a copy.
2. Second, tell other employees that we simply had to “let the employee go” and don’t go into any detail. If we need to make a statement, make it brief, neutral in tone and let the existing employees know who will be taking over the former employee’s duties.
3. Finally, we can have the employee sign a release to protect us against lawsuits. Include a clause where the employee grants us permission to provide information to prospective employers and promises not to sue us for providing such information.

What to Say to Potential Employers

If a potential employer calls asking for a reference, do your best to stick to the facts and avoid making unflattering comments that may come back to haunt you. Here are some simple guidelines to remember:

• Be Brief: the best tactic when giving a reference for a former employee that may be questionable is to simply keep it short. Give out their dates of employment, job title, and final salary and leave it at that.
• Be Factual: don’t speculate or hint at any potential wrongdoing that we may honestly believe happened but can’t prove.
• Don’t Be Unnecessarily Negative: don’t start ranting or inflating any misconduct, just offer the information we can in good faith. Providing the information in good faith is a shield to a defamation lawsuit in many states.
• Don’t Cover-up: while we shouldn’t start speculating and bad mouthing the prior employee, at the same time we shouldn’t cover-up for him or her. If we outright lie and cover-up for a former employee, we can actually get sued by the new employer for failing to warn them about serious employee misconduct.

If the Employee Was Fired for Cause (whether we can prove cause or not): often times the prospective employer will ask if we would consider hiring this person again, and you can emphatically say, “We would NEVER hire this person again.” If they ask why not, and it’s not something we can prove, say that you aren’t able to go into specifics but repeat that we would never hire this person again. That gets the message across to the potential new employer without risking any kind of lawsuit. Even if they don’t ask, you can volunteer that we would never hire this person again.