“A former employee of our business was, at best, a mediocre performer. We have received a reference request from a prospective employer who is thinking about hiring him. Do we have an obligation to respond? And if we respond truthfully about the employee’s poor performance, can the former employee bring some type of claim against us if he doesn’t get the job because of what we say?”
This HR issue is among the most common legal questions that members of the Society of American Florists have asked Paley Rothman. SAF partners with the Bethesda, Maryland law firm so members can get quick answers to business legal questions — for free.
Through the partnership, SAF members can contact attorney Jessica Summers for a free 15-minute legal consultation on a variety of issues such as taxes, estate planning, employment law, leases and real estate, copyrights and trademarks, acquisitions and regulatory compliance. Members can contact Summers at 301-968-3402. Be sure to mention your SAF membership.
Summers offers this legal advice:
“First, assuming that the request is not in the context of a government agency performing a security clearance, private employers have no obligation to provide a substantive reference for a former employee. In fact, to avoid any uncomfortable situations, many employers have a policy of only confirming an employee’s position, salary and dates of employment. This allows the business to sidestep any issues entirely.
If the business is willing to provide substantive references, it’s typically a good practice to always get an authorization from the former employee (regardless of what you expect the content of the review to be).
As to the second part of the question, many states have laws that protect employers from liability from making truthful statements about former employees. These types of laws would protect a business that provides a truthful assessment of a former employee’s less than exemplary performance. Before responding to a request for a reference, it is always a good idea for the business to check the laws of the state in which it is operating.”
Please note: The explanations and discussions of legal principles herein are intended to be used for informational purposes and are not to be relied upon as legal advice. Situations may vary and nothing included herein is intended by the author to be used as the principal basis for specific action without first obtaining the review and advice of an attorney.
For more programs and services available through SAF membership, visit safnow.org/business-service-discounts.
