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Giving References for Former Employees
Learn what to tell prospective employers about a former employee.
Whenever one of your employees leaves, you will have to decide what to say to other employers who call for a reference. The decision is pretty straightforward if the employee left on good terms: You and your former employee can come up with a mutually agreeable statement to explain the departure. Or, you can simply tell the whole glowing truth to any prospective employer who calls for a reference. But if the employee was fired, you face a more difficult task.
Defamation Lawsuits: The Fired Employee's Revenge
If you are not careful in your statements about former employees, you might find yourself facing a defamation lawsuit. To prove defamation, a former employee typically must show that you intentionally damaged his or her reputation by making harmful statements about the employee that you knew to be false.
At first glance, it might seem like only the most spiteful employer would get caught in this trap. But, if you make an unflattering statement that you don't absolutely know to be true, it could happen to you. Let's face it: Most reasons for firing make the employee look bad. And an employer often cannot prove what he or she strongly believes to be true -- that an employee is stealing from the company, is incompetent, or lied about job qualifications, for example. An employer who makes such statements about a former employee could get into trouble. Your best policy is to say as little as possible and stick to facts you can prove.
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What to Tell Potential Employers
When a potential employer calls for a reference, you may feel trapped between wanting to tell the truth and fearing a lawsuit if you say anything unflattering. Unfortunately, this fear is not unfounded. The number of defamation lawsuits filed over negative references is growing all the time. And, even if your former employee can't successfully prove that you defamed him or her, you will have to spend precious time and money fighting the allegation.
Here are some tips to help you avoid problems:
- Warn a difficult employee that your reference won't be good. Yes, the employee should know this already. But you can avoid problems at the outset by stating the obvious: "I cannot provide a positive reference for you."
- Designate one person to give references. Choose one trusted person in your company to be responsible for all references, and tell all of your employees to direct inquiries to that person. Make sure that a record is kept of every request for a reference and every response, in case of later trouble. And you may want to adopt a policy of providing references only in writing, so you'll have proof of exactly what was said.
- Insist on a written release. If you want to make absolutely sure that you're protected against lawsuits, require former employees to sign a release -- an agreement that gives you permission to provide information to prospective employers (and promises not to sue you for doing so).
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