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How frank can we be with references?

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Q. We recently received a reference request from another company. We would like to be honest with the potential employer about the former employee’s performance issues. The employee was unreliable, did not get along with co-workers, and was always complaining to his supervisor about our business practices without any basis. Are there risks to being honest and giving the employee a bad reference?

A. Yes, there are certain risks to giving a negative reference on a former employee. It is not illegal to give a bad job reference, as long as what you say is factually accurate.

Nevertheless, you do run the risk of exposing yourself to a defamation claim whatever you say, especially if you say something negative that is not a hard fact that can be proven by documentation.

There also may be risks under the Minnesota Whistle­­blower Act. Last year, the law was amended to provide that employers can be liable for post-termination retaliation based on a former employee’s whistle-blowing. A bad reference that is retaliatory may violate the Whistle­­blower Act.

The act was also amended to make clear that protected reports by employees include reports of violations of the common law, in addition to statutes and regulations, and that any sort of communication by an employee, formal or informal, may qualify as protected. An employee’s report may be made in good faith under the act as long as the employee does not know the report is false or with reckless disregard of the truth.

Given all these expansions, your former employee’s complaints to his supervisor about the company’s business practices might be construed under the Whistle­­blower Act as a protected report if they involved any allegations of illegality.

All things considered, the best course is probably to limit the information you give in the reference to the potential employer to verifying basic facts about the ­former employee’s employment, such as dates of employment, job title, and ending salary.

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Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she ­regularly advises employers and provides training on a variety of employment law issues. Contact her at megan.anderson@gpmlaw.com or (612) 632-3004.

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