August 5, 2013
Know How

4 Tip To Avoid Legal Hot Water With Employee References

Picture this: You pick up the phone and it's someone in human resources at a local business seeking a reference for a former employee. What can you say? What can't you say?

References for former employees can expose your business to potential liability. Information provided by a former employer can open the door to a defamation claim; that is, providing information the employer knew — or should have known — was false, or in violation of anti-discrimination and retaliation laws.

So, how should you handle reference requests without exposing yourself to a lawsuit?

Be 'Neutral'. The safest approach is to give a neutral reference, which provides basics: name, job title and dates of employment. This can limit potential liability for two main reasons. First, the employer can verify the information as true, avoiding a potential claim of providing false information. Second, an employer who consistently gives neutral references for all former employees avoids the appearance of discrimination or retaliation.

Adopt an employee reference policy. Discrimination lawsuits are usually based on claims that not all former or current employees are treated equally. Therefore, providing consistent information in response to requests is key in reducing liability for discrimination. Employers should adopt a company-wide policy that addresses how to give a reference. The policy should specify who should give the reference, what information may be given, and that the policy must be applied consistently to all former employees, regardless of why they left the company.

Require that requests for references go through HR. Limiting reference requests to the human resources department will avoid the possibility that a supervisor might provide information that would be either defamatory or imply discriminatory intent. Although a neutral reference policy is the safest course for many businesses, under Massachusetts law, employers have a conditional privilege to disclose truthful information about an employee, so long as they have a legitimate business purpose for doing so. But supervisors may not understand what could create legal liability, so limiting reference responses to HR can help avoid potential lawsuits. And even HR should not release information beyond the basics without a signed release from the former employee that absolves your company from any liability for providing information in response to a request for references.

Check references, even if you don't think you'll get more than the basics in response. Although you may be inclined not to bother checking references of prospective employees, with the assumption that you will only learn basic information, you should check them anyway. Even if all you would have learned about the prospective employee are his dates of employment, if you don't even bother to check, and that employee engages in conduct that injures another person, your failure to check references could give rise to a claim of negligent hiring. And neutral references can help verify the information on an applicant's résumé and application.

If you need help developing a reference policy, contact your labor and employment counsel.

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Amelia J. Holstrom is an associate attorney at Skoler, Abbott & Presser PC, based in Worcester and Springfield. Contact her at aholstrom@skoler-abbott.com.

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