Have you ever been asked to provide information on your former employees? This is a common occurrence and can be complicated depending on what is being asked. Curtis Rostad provides his insights to this important question below.
Question: I had a firm call me asking for information on a former employee who had applied for a job with them. I didn’t know what I could tell them. I have been told only to confirm that they used to work for us and their dates of employment. What is the law?
Curtis Rostad: There is no federal employment law restricting what you can say about a former employee. The advice to disclose only employment dates comes from (overly) cautious attorneys that fear you might be sued by the former employee for defamation over what you might say. But you are not subject to a claim of defamation for telling the truth. Even your opinion is generally protected as long as there is a factual basis for it.
Even California, known for very liberal employment laws, allows former employer references. However, they do have a specific statute that makes it is a misdemeanor if a former employer, “by any misrepresentation prevents or attempts to prevent” a former employee from getting a job. So again, if you tell the truth- make no misrepresentations, you are protected.
By only confirming employment dates, good employees not only lose a valuable job reference, but the hiring employer is likely to think the worst if that is the only information, they can get from you.
Of course, if the employee was not a good hire or if they were fired, you want to be careful what you say. Be factual. If they were terminated, you can say so. You can give the reason if the termination was “for cause.” If you did not give a reason to the former employee, don’t give one to the prospective employer. “They just were not a good fit,” is a good phrase to use for an “at will” dismissal. Don’t go into details- especially those that were disputed or subject to interpretation. Do not divulge confidential information (medical history for instance). Stay away from personal attacks. Show no malice, and don’t get into rumors or gossip. The best way to do all this is to keep your answers and the conversation short.
Finally, it should be your policy that only you or some other authorized person is allowed to talk to a prospective employer about a former employee.
Your attorney would say that to avoid all risk of liability, you shouldn’t be in business in the first place. But doing what is right—telling the truth- is still really good legal protection.
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