If a company that’s considering hiring one of your former employees calls for a reference check, think twice before saying you can’t recommend him. If that employee engaged in protected activity while working for you, he may see your negative reference as retaliation for that activity. And that may spur a lawsuit.
That’s especially true if your company ordinarily doesn’t provide references that go beyond the basics: position held and length of service.
The negative reference doesn’t even have to be false. The former employee only has to prove that knowing a poor reference was possible would have deterred a reasonable employee from engaging in protected activity.
Recent case: Mark Noble sued his employer, Genco, for discrimination. They settled the case. Then Noble began to apply for other jobs.
That’s when prospective employers began hearing from Genco that they shouldn’t hire Noble because he was litigious, sexually harassed a female employee, threatened co-workers and was a felon.
Noble said those statements were all false and sued for retaliation. Genco argued that Noble couldn’t prove the statements were false.
The court said that argument missed the point. Noble didn’t have to prove the statements were false. He just had to prove that a reasonable employee wouldn’t have sued Genco in the first place if that employee realized the company would punish him by blocking efforts to get another job. (Noble v. Genco, No. 2:10-CV-648, SD OH, 2010)
The bottom line: Providing only neutral information about former employees is the best policy in just about every circumstance.