How honest can I be when called for a reference on a subpar former employee?

Q. I recently fired one of my employees, but today another company called me, stating that the former employee marked me down on a job application as an employment reference. Can I tell the prospective em­­ployer about how terrible an employee this person was?

A. California law clearly states that, at the request of a current or prospective employer, you may communicate information relating to that ex-employee’s job performance or qualifications. The law protects you from claims of libel and slander when you respond to the question of whether you would rehire the individual, as long as your statements are based on credible information and are not made maliciously.

Relating any information that is not job-related, however, may not fall under the same legal protection.

There is a good reason to be frank when someone calls requesting information on a former employee. Take the example of an employee that you discharged due to violence in the workplace. If that person is hired by another company and commits a similar violent act, your company could be held liable for failing to provide information that could have prevented the incident.

If you decide to provide a detailed reference, make sure it is not misrepresenting the facts. You can be held liable for giving a glowing reference to a former employee who was let go for misconduct.  

Reference-check policy should follow these guidelines:

  • Designate an employee or group to respond to reference requests. Train supervisors to direct any reference requests to that group.
  • Only employees with the directly stated authority to divulge reference information should respond to requests. Be sure employees know who this includes.
  • Draft a waiver for employees to sign when their employment ends, allowing you to release their job-related information to prospective employers.
  • If you provide a letter of reference, rather than oral reference, draft it to reflect facts about that particular em­­ployee’s performance; do not use a standardized letter.
  • Before providing a reference by phone, verify the caller’s identity by speaking with the caller’s employer.