To start forming an idea of a job candidate’s employment history and work style, managers are likely to reach out to the candidate’s former employers for references. While applicants hope their former employers give them glowing recommendations, this might not be the case if things didn’t end on good terms with one of those former employers. Someone’s ability to take the next step in a career could hinge on a reference, so could you be hit with a lawsuit if you give one of your old employees a bad reference?
Toeing the Legal Line
An honest assessment won’t put a former employer behind bars or on the receiving end of legal punishment. What does start to cross the line is when that former employer misrepresents a former employee or tells a blatant lie. That being said, it’s still challenging to satisfactorily prove why an applicant may not have been hired for a job. In most cases, the person likely won’t receive a phone call or email regarding not being hired. Even if the applicant does, she or he probably won’t learn the specifics as to why. It might have been a former employer’s reference, but it also might have been that there was another applicant who was more qualified. Now are you starting to understand why these cases are so hard to prove?
The Truth Comes to the Light
If former employees are able to determine you gave them bad references, they might take action in determining whether your references were factual, falsified or simply your opinion. If the bad reference was true, you are safeguarded by the law, which means the employee likely has little to no legal recourse. The same applies to an opinion with which the former employee may not agree. It’s only false facts that open the door to a defamation lawsuit. Should an old employee determine a former employer has given a false reference and decides to take legal action, it’s best that the employer determine how state laws govern defamation lawsuits. For instance, in California, it’s a misdemeanor whenever a former employer uses misrepresentation to prevent or attempt to prevent a former employee from getting a job.
To keep from becoming unintentional targets for defamation lawsuits, many companies now have special policies in place that restrict the type of information given to prospective employers. Specifically, management and HR representatives may only be able to confirm someone was in fact a former employee and the dates of that individual’s employment. While this certainly isn’t the type of reference for which the candidate was hoping, it’s an understandable measure to keep lawsuits and other legal actions at a minimum.
An employee who is worried a former boss might reveal her or his record of tardiness or lackluster work performance to a prospective employer is likely not to mind such restrictive policies. On the other hand, an employee with a sterling record probably prefers that you go into detail about his or her work performance. Something else to think about is the fact that inexperienced employers might mistake a tight-lipped manager or HR rep as someone who doesn’t want to bad-mouth a bad employee, which might lead to false conclusions. No matter what you do or do not reveal about your former employees, it’s up to them to show potential employers they should be given a chance. While they might not have been the best employees when they worked for you, that doesn’t mean they haven’t changed.
No matter how much you might like or dislike a former employee looking for a reference, always be honest. Just as she or he might not have been a good fit for your company, you might not have been a good fit during her or his time of employment with your business.
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