Q. What can we do to protect our company from being sued by former employees when we give references? Should we require that the prospective employer provide us with a release or consent from the former employee?
A. Releases and consents provide some protection, but not as much as most employers believe. The resulting false sense of security often leads to litigation.
The best approach is to implement and enforce a policy limiting who may respond to reference requests and what information may be provided. Such policies typically require all reference requests to be directed to HR and prohibit any other employees from providing references on behalf of the company.
In addition, these policies restrict what information may be disclosed in response to a reference request. They prohibit disclosure of any information other than a former employee’s official title or position held, dates of employment and (sometimes) salary.
Some policies prohibit employees from providing “personal references” on company time using company equipment such as e-mail, phones and faxes. As an additional incentive for compliance, make clear that an employee who decides to give a personal reference will bear any legal consequences that may arise from that decision.
Finally, many policies require responding to all reference requests in writing. That lessens the likelihood of a dispute over what information an employer disclosed.
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