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How to safely handle calls for references, recommendations

by on
in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Clearly, predictions of a “jobless recovery” from the Great Recession are coming true. The unemployment rate has been hovering between 9% and 10% for more than a year, and stood at 9.9% at the end of April.

Chances are, some of those unemployed people once worked for you—and they would probably love to list your organization and their former supervisors as references.

That means it’s time to make sure you have policies on how to handle reference-check calls. Start training managers about your policy now—before a supervisor makes a mistake that invites a former employee to sue.

Consider the inevitable: With more applicants than job openings, many job-seekers will be disappointed; some will suspect that the reason they lost out on a new job is because someone at their former employer bad-mouthed them.

Answering the call

When prospective employers of your former employees call, the safest policy is to provide only the basics: dates of employment, salary history and job title.

By standardizing the response, you minimize the risk of a successful retaliation or discrimination lawsuit. This approach also minimizes the risk of defamation suits.

To make this policy work, train supervisors to refer all inquiries to HR for an appropriate response. This applies to all references, whether the former employee was a good or bad performer, or eligible for rehire. If you use this “no comment” response, you must do so for everyone.

Prospective employers will often directly contact the former employee’s supervisor for a reference. It’s an effort to circumvent HR’s no-comment policy.

Supervisors need to understand that, as agents of the employer, they don’t have the option of providing a “personal” reference for former employees.

Stop defamation claims

If you choose to ignore this advice, know that you could expose your organization to defamation claims. Employers have a qualified or conditional privilege to share job-related information, provided disclosure is made in good faith and without malice. But the privilege is not absolute.

Follow these steps to preserve the privilege:

Respond only to inquiries; do not volunteer information. If someone asks whether an employee had good attendance, don’t say, “Yes, but we laid him off because we believed he had a drinking problem.”

Get the inquiry in writing to ensure the request is legitimate.

Disclose only job-related information such as performance, ability and duties. Be objective. Avoid personal opinions about personality, characteristics and attitude.

Do not provide false information or details that could be misleading or speculative.

Ask for a release from the former employee before providing any information (see box below for sample). Have your attorney carefully review the document to ensure it releases former employers and their agents from liability for reference information you disclose. Such a release may provide an absolute privilege to provide information.

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