Human Resources News & Insights

When you’re asked for a reference for a problem ex-employee

Joe was a real pain, and you practically danced when he left your company. Now, another employer wants to know what you think of Joe.

Some companies, and HR managers, take the approach of only giving out barebones information, such as verifying dates of employment, just to stay out of legal trouble. That’s OK, but you don’t have to feel so boxed in when you get a request for a reference.

Consider three possible steps:

Warn problem employees at the exit interview. About half of all reference-request problems can be erased before the request is even made, by just warning the employee, “If contacted, we won’t be able to give you a positive reference.” That puts the employee on notice to go another route when mentioning references to a prospective employer.

Get a written release. Tell the employee that you require his or her signed release before giving out reference information. If the employee refuses to sign, your option is clear: Any requests for reference information should be met with: “I’m sorry, but Joe refused to give us the OK to give out information.”

Channel all reference requests through HR. Some managers may take offense to the idea that you’re denying them the chance to have their say about a former employee, so you’ll probably have to explain the reasons why:

  • Some prospective employers may contact more than one person in your company, and you want to avoid giving out conflicting information.
  • An incorrectly worded reference can be cause for a lawsuit. Sometimes even seemingly innocent and truthful statements can get twisted into damning evidence against an employer.

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  • Jim Rittgers

    I think Mr. Giuliano should reconsider his opinions/comments re: references. Advising a departing employee that “We won’t be able to give you a positive refernce…” is not a good idea as it gives the employee ammunition for a possible legal action. I question Mr. Giuliano’s claim that “About half of all reference check problems can be erased before the request is made…” (I assume in his “Warn employees..” paragraph that he is referring to employees that quit and not those that are terminated, since doing exit interviews with terminated employees is normally not a good practice. Since the example in his article involves an employee who quit, I’m not confident my assumption is correct.)

    “Get a written release” from a departiing employee is not necessary. It is an employer’s responsibility to obtain a release from candidates under consideration, i.e., I advise prospective employers of my former employees that I require a release before commenting. Efficient employers have the release included in their employment application form. When I make reference calls and I’m advised that a release from my prospective employee’s former employer is required, I simply fax the page of the application form that contains the release.

    If a terminated emplyee asks me “What will you say if a potential new employer contacts you?” I ask the departing/departed employee “What are you going to tell potential employers is the reason you are no longer working here? I never agree to make a false statement regarding a former employee’s departure.

    The article should have mentioned that some states have laws that protect employers when giving references. For example, Wisconsin has had a law (WI Act 441) for 10+ years that protects employers when giving references, provided the information they give is not “knowingly malicious or false.” A little research in this area would have made the article much more informative/useful.

    A misunderstanding of the reference checking process has existed for many years. This article doesn’t do anything to help reverse the misunderstanding.

    Thanks,
    Jim Rittgers

  • Mike Faber

    Ohio has a law protecting employers similar to Wisconson and this allows employers to tell the truth to assist the success of the employment screening process as they would want when calling for references.

  • debra

    I agree with Jim Rittgers – when I initially read the part “If contacted, we won’t be able to give you a positive reference,” that sounded like a lawsuit waiting to happen! But what constitutes “knowingly malicious?” Can we let the future employer know that an ex-employee had a lawsuit against us (i.e., labor board, workman’s comp, discrimination, or whatever)?

  • Carolene Archuleta

    Initially we only give references to prospective employers if they have a signed consent form faxed to us in addition to the signed application that stipulates references.The only information we will release is the name, job title, start date, term date. if they ask if we would rehire this employee we state yes unless the individual is harmful to himself or others and by law we have to divulge the truth. Or face a law suit if the person is harmful to himself or others. In the same instance we had better have proof of the incident we are referring to or face a lawsuit. If the employee trys to sue because we stated this they will loose in a court of law due to the fact we are saving him from himself and others.

  • David

    I’m a county attorney and we are getting some troubling court opinions about failure to tell prospective employers about former-employees who may be a danger to others. The law is still unclear about the “danger to others” standard. “Danger to others” does involve violence and sexual harassment–but only in some circumstances. Touching is a danger to others; verbal sexual harassment is not. These are STATE court cases in my state at this time. I hate to do this to the rest of you, but it might be a good idea to consult your attorney. If you do not have a company attorney, this is advice you could get from a good labor/personnel/employment law attorney in a half-hour meeting. Failure to warn can lead to liability in my state.

  • Essie

    How do you tell the new employer that your ex-employee preys on under-18-year-old boys? He hasn’t been caught and the victims won’t come forward. They are either too embarassed that they fell for the “roofie” in the beer gimmick, or have become so hooked on the free booze and drugs that they won’t squeal?

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