Employment References - How to Avoid Getting Sued
Providing references for former employees is easy if you parted on good terms. If you had to fire an employee, however, it can be a difficult decision about how honest you should be with the former employee's potential new employer. If you tell that potential employer anything about the former employee that you can't verify as factually accurate, you may be facing a lawsuit.
To prove a defamation case, a former employee must show that you intentionally damaged his or her reputation by making harmful statements that you knew weren't true. Pretty much any negative comment you make can qualify as a harmful statement that intentionally damaged the employee's reputation. If you had to fire someone, the reasons behind it almost assuredly damage the employee's reputation and by communicating those reasons to a new employer, it becomes intentional.
Defamation isn't just limited to factually untrue statements about a former employee. If you tell the potential employer things that you suspect or strongly think are true, but can't actually prove, then that may qualify as a statement that you "didn't know was true". Keep unflattering comments to yourself, and really just stick to the verifiable facts.
What to Do When Firing an Employee
First, when you fire an employee, tell them up front that you won't be able to provide positive references. This alone can avoid a bad situation, since only a really daft employee would request references from you after being told that you would give him or her negative references. If it comes down to a lawsuit later on, it will be helpful to show that you in fact told the employee that you would not give them a positive reference, so make sure you tell the employee in writing and keep a copy.
Second, tell other employees that you simply had to "let the employee go" and don't go into any detail. If you need to make a statement, make it brief, neutral in tone and let the existing employees know who will be taking over the former employee's duties.
Finally, consider having the employee sign a release to protect yourself against lawsuits. Include a clause where the employee grants you permission to provide information to prospective employers and promises not to sue you for providing such information.
What to Say to Potential Employers
If a potential employer calls asking for a reference, do your best to stick to the facts and avoid making unflattering comments that make come back to haunt you. Here are some simple guidelines to remember:
- Be Brief : the best tactic when giving a reference for a former employee that may be questionable is to simply keep it short. Give out their dates of employment, job title, final salary and leave it at that.
- Be Factual : don't speculate or hint at any potential wrong doing that you may honestly believe happened but can't prove.
- Don't Be Unnecessarily Negative : don't start ranting or inflating any misconduct, just offer the information you can in good faith. Providing the information in good faith is a shield to a defamation lawsuit in many states.
- Don't Cover-up : while you shouldn't start speculating and bad mouthing the prior employee, at the same time you shouldn't cover-up for him or her. If you outright lie and cover-up for a former employee, you can actually get sued by the new employer for failing to warn you about serious employee misconduct.
When to Contact an Employment Law Attorney
If you are asked to be a reference for an employee you have fired, it's best to speak to an employment law attorney first. A skilled attorney will be able to guide you through the process and help you decide what is legally acceptable for you to communicate.