If you are an employer, supervisor, or anyone who has managed other people, you will probably at some point get a phone call inquiring about a former employee who has listed you as a reference. This can be awkward, especially if the former employee was not exactly the best at his or her job. Here are some suggestions for anyone who finds him or herself in this situation:
Be Honest.
We’re all nice people, and we don’t want to hurt anyone’s job prospects. But giving a former employee a glowing review just to be nice is not a good idea. If that former employee might pose a danger to others or is totally unqualified for the position he or she has applied for and you fail to disclose this when asked, you could find yourself a defendant to a lawsuit. A previous employer can be held liable for failing to disclose an ex-employee’s potentially violent, dangerous, or irresponsible tendencies when that employer knows about them and is asked. So if you supervised bus drivers, and one of your drivers was fired for showing up drunk to the job, and you are asked why that person was fired and you fail to give an honest answer because you want to be nice and help your former employee, you could be liable if he or she gets the job and then crashes the bus when intoxicated. You do not have to go out of your way to disclose all of the dirt that you have on a former employee, but you also should not cover up bad behavior.
Be Accurate.
Make sure the information you provide about the former employee is accurate. If you provide inaccurate information and that employee is not hired as a result, you could potentially be sued for defamation. It is a good idea to review an employee’s personnel file before giving the reference and making sure that your recollection of the employee is consistent with everything in the file. Remember, the Personnel Record Review Act gives an employee the right to examine his or her personnel file, so you do not want to say something that contradicts what is contained in that file.
Also, don’t guess or speculate. If you are asked a question and you don’t know the answer, just say you don’t know or can’t remember. Do not provide an answer unless you know it is accurate. Guessing wrong about the answer to a question could leave you open to a defamation lawsuit. Keep your answers brief-the more information you volunteer, the greater the chance to get yourself in trouble.
Check to See Whether a Non-Disclosure Agreement Exists.
Many separation agreements include non-disclosure agreements where both the employer and the employee agree not to discuss why the employee left or other aspects of the employee’s time on the job. So, check with HR or the former employee’s personnel file to make sure that you are not violating a non-disclosure agreement by giving the reference. If a non-disclosure agreement does exist, let a lawyer look it over before you give the reference.
Don’t Say an Employee Was Let Go Because of Age, Disability, Pregnancy, Etc.
This is common sense, but do not say that an employee was let go because of his or her race, sexual orientation, religion, gender, sexual identity, etc. Also, don’t say that an employee was let go because she became pregnant, or he or she fell victim to a disease or developed another type of disability or got to be too old. Such statements leave you open to lawsuits for violating Title VII, the Americans with Disabilities Act, Pregnancy Discrimination Act, Illinois Human Rights Act, Age Discrimination in Employment Act, and several other laws.
It may not be a bad idea to create a written policy that should be followed when someone in your organization provides a reference. Feel free to contact us if you would like help creating this. Also, feel free to give us a call if you have questions or would like advice before you give a reference.
