In employment law cases, “Victory in court is always a little bitter when the costs of achieving it are factored in,” says attorney Russell Adler. He was referring in particular to the potential dangers of giving references.
Adler, who practices labor and employment law at WolfBlock, made his remarks on workforce.com. His advice: “Stay out of the courtroom in the first place.” In today’s Advisor, we take a look at some of his courtroom avoidance tips, and then augment them with suggestions from BLR’s SmartPolicies program.
Keep it brief. The more information you provide, the greater the risk that it will provide fodder for a defamation claim.
Don’t stray far from standard policy. If references are only given in writing, do not make an oral reference that can be misconstrued as derogatory in any manner. If references always include certain basic information, such as date of hire and title, include that information in the reference along with the additional information.
Limit statements to documented facts, where possible. If an employee was terminated for frequent unexcused attendance violations, explain that the employee had 13 absences in a 3-month period. Such statements are easier to verify if challenged.
Avoid conclusions. Wherever possible, use noncommittal terms rather than definitive statements. For example, it is preferable to state that the company’s investigation indicated there “may have been a violation of workplace policies” rather than “the company’s investigation concluded that the employee stole company property.”
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Consider silence as an option. Unless a safety-sensitive position is at issue—for instance, if a former employee was terminated for workplace violence and references are being sought for a position that involves the former employee working with children—purposefully failing to respond to the reference request may accomplish the same goal while reducing exposure to a potential claim.
Always consider whether the statement could be deemed retaliatory. If the employee filed an administrative charge of discrimination or a discrimination lawsuit (or has stated an intention to do so) or engaged in other protected activities, you are probably already on high alert. In these situations, reference requests need to be handled with extra care, and it is advisable to seek counsel before providing a reference. In many cases, even weak discrimination claims can spawn retaliation claims.
BLR’s popular SmartPolicies program adds the following helpful tips concerning references:
Check files before releasing information. Even if you know why someone was terminated, be sure what you are about to say matches what the file says.
Take care with rehire status. If you say the employee is not eligible for rehire, you may be sued for defamation. Your policy should address whether you will provide this information. Some employers provide a stock answer that “every applicant will be given due consideration regardless of whether they previously worked for the company.”
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Beware of discrimination. If negative references prevent an otherwise well-qualified female or minority employee from getting another job, and if the information was based (or appears to have been based) on discriminatory actions or attitudes, the employer may be liable.
Maintain confidentiality of Americans with Disabilities Act (ADA) information. Care should be taken that information you disclose about an employee does not violate the ADA. For example, if information is requested concerning attendance, and you decide to provide that information, you should limit your response to factual information. Do not add any comments concerning the individual’s physical condition that led to significant amounts of absence.
Similarly, if you are asked whether an individual is capable of performing essential job functions, limit your response, if any, to factual information. Do not discuss or reveal any confidential medical information.
In tomorrow’s Advisor, we’ll look at how to deal with telephone requests, and how to respond to requests for other types of information.
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It is understandable to use a cautious approach on references. However, in my training, I recommend:
1. Use of the “qualified privileged” concept – as long as the information is factual and given in good faith, most states consider it “qualified privileged”, which protects the employer from adverse legal action. This may not prevent a company from being sued but should protect the company from losing in a court of law.
2. Related to this – if the current or former employer clearly had information that the employee could pose a danger to another party and failed to provide that information to the prospective employer, the current or former employer might be liable if the employee is subsequently hired and then harmed a third party. Remaining neutral on a job reference when the former employee has been terminated for a serious offense can result in a lawsuit and perhaps borders on an ethical shortcoming for the company that does not provide a reason for termination, e.g. the Paul Calden incident.
3. We inform – on reference checks – that we would or would not hire the former employee back. If we term for performance, our company policy states we will not hire the former employee back, and therefore, we indicate that in the employee’s file – as such, we release that information on reference checks. We do not expand on “no hire back” – that is – the specific reason for the no hire back.