Many employers still want references before they hire, but getting useful information is difficult as companies are either unsure of what information they are allowed to give or afraid of getting sued for saying the wrong thing.
Debra Weiss Ford, an attorney and managing partner with the Portsmouth office of Jackson Lewis, recently held a seminar that included the topic of references and what can and cannot be shared with prospective employers. She asked the room full of people to raise their hand if their company still gave references. Only three people raised their hand, Ford says.
Stick to the Facts
Many businesses have adopted policies to either not give references or to only confirm dates of employment and job title. You don't want people to give out personal opinions. Confirm they worked there, their position and the time frame. Keep it purely factual, says Jason Major, an attorney with Douglas, Leonard & Garvey, P.C. in Concord.
Experts say as long as the information is factual and documented, providing reference information should be safe. Truth is always a defense in a defamation action. Stick to the facts and do not embellish on someone's performance. Be accurate in the information you give, Ford says. If the information is not documented, as a general rule, don't share it, says Andrea Johnstone, an attorney and shareholder at Bernstein Shur in Manchester who co-chairs the firm's Labor and Employment Practice Group.
Have a Plan
Ford says it is a good idea to have a clear policy about who is responsible for giving references and what information the company allows to be given. That information should be included in both the employee handbook and in manager training.
Companies should funnel all reference requests to the human resources department or, if the business does not have one, then to either the COO or president, Ford says. It should be someone with experience and expertise in HR matters who is responsible for it and all employees should know that is the chain of command, Ford says.
Get it in Writing
Johnstone and Ford recommend companies seeking references issue a waiver or authorization form that job applicants sign authorizing their former employer to provide information about their employment. The document should also state the applicant will not hold either company liable for the information disclosed and release them from any claims.
Without some kind of authorization form, Ford would not recommend employers disclose information beyond confirming employment. She also warns employers against giving recommendations over social media.
There is a whole new problem with social media and LinkedIn. People often are asked on LinkedIn to give recommendations. We train supervisors and managers against giving those types of recommendations on LinkedIn. If you give false information, [even unintentionally] it could come back to bite the employer, Ford says.
Lowdown on Lawsuits
Even with such precautions, it doesn't mean someone might not take action against a company if they feel a reference interfered with their landing a job. It just means the company can better defend against such a case.
I get lots of calls from people who think their former employer said something to a prospective employer that got in the way of a new job. If you interfere with a person getting a new job, they may start calling lawyers, Major says, adding even if the case has no merit, the company will still have to defend against it.
Johnstone says unless there is a claim of defamation, most legal actions employees bring in regard to references are usually part of a larger lawsuit. It's usually not a stand-alone claim, Johnstone says. For example, if a boss is already in legal hot water for gender bias and gives a bad reference, it could be used as further evidence of gender bias, she says. There are concerns about defamation action and employers are being cautious about it,
Ford says.
Current Issue - May 2024