Reference Checks: What Can an Employer Say or Not Say

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Getting that call from a prospective employer of one your former employees can make any business owner nervous. “What can I say?”  “What can’t or shouldn’t I say?” “Will I end up getting sued if the former employee finds out I badmouthed him or her?”

Employers today are often caught between a rock and a hard place when it comes to responding to reference requests. On the one hand, if they say what’s really on their mind and let the prospective employer know that Joe or Sue was constantly late or had all kinds of performance issues or created morale problems in the office, the former employee is likely to claim that his or her old employer spiked the chances for the new job and attempt to claim defamation. On the other hand, if the former employer gives a glowing recommendation and the old employee really wasn’t a stellar performer, then there is a risk that the new employer may come after the old one claiming fraud, misrepresentation or any number of other theories.

employer questionsFortunately, in Illinois, employers are protected with a “conditional privilege” which protects an employer for claims of defamation or other claims regarding employment references without evidence that it acted with malice in providing incorrect information to a prospective employer. An employer may only be held liable for reference information imparted to a prospective employer if the old employer acted intentionally or with reckless disregard for whether the information was accurate. IN many instances, where the information provided in response to a reference check does appear to be inaccurate, it may be difficult to establish whether the employer was simply negligent or acted with malice, making courts reluctant to dismiss such claims.

The issue comes into play when this information is shaded or slanted to provide an inaccurate perception. For example, if an employer states that Joe worker was habitually late for work, it may create the impression of carelessness or a tardiness problem. If the reason the employee was constantly late for work is that he had to stop for medical treatments related to a disability, then a false impression could be created since Joe’s tardiness may have been excused under the Americans with Disabilities Act or the Family and Medical Leave Act. In either way, the employer’s statements could open the door to a potential lawsuit.

Many employers are opting to take the safe approach – and will only confirm dates of employment, position held, and confirmation of last salary (if the employee has provided that information) and nothing more.

So what’s an employer to do to protect itself short of just giving name rank and serial number? It would be prudent for employers responding to requests for information regarding former employees to take the following steps:

  1. Adopt a consistent policy regarding information disclosed. An employer should be clear and consistent about what type of information it will disclose. A critical component of this approach must include disclosing the same information regarding all employees to ensure fairness and reduce legal risk;
  2. Require that all information must come from a single source. Designate only 1 individual within the company to respond to reference checks. Do not leave it up to individual managers or supervisors. Let HR handle it. Prospective employers should be made aware that if an individual manager or supervisor provides information beyond what is company policy, it should not be considered a communication made on behalf of the company;
  3. Insist that reference checks be put in writing. Remove all doubt about what is communicated by requiring all reference checks be reduced to writing. If there is any doubt about what is provided on the reference check form, an employer can always rethink the response to ensure accuracy and truthfulness before it gets sent back.

 

With over 30 years’ experience in advising employees and businesses on labor and employment issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website at www.boznoslawoffice.com

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