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A good reference for a good worker, even though we fired him?

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in Employment Law,FMLA Guidelines,Human Resources

Q. We had to fire a good worker because of absenteeism problems. When someone who wants to hire him calls to verify past employment, what can we say about this man?

The easy answer: Say what you want. But if it were that easy, you wouldn’t be asking, and you’re right—it’s not as easy as it seems.

The primary legal concern about responding to references is the risk of a defamation lawsuit, but it’s not the only one. You also have to be concerned about the possibility of discrimination if you treat people differently because of a protected status, or retaliation for having engaged in protected activity. That’s why the traditional answer, which unfortunately remains a good one, is to have a standard policy that limits reference responses to neutral information such as the last position held and dates of employment. Then follow your policy. 

I say “unfortunately” because such policies often end up hurting good workers, particularly ones who may have some characteristics where more explanation would be helpful, such as the good worker with an attendance problem.

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