While it’s commonplace in parts of the United States to give references to employees, it’s not advisable, says Chris D’Angelo, a management-side employment attorney with New York-based Vandenberg & Feliu LLP. Especially in the absence of a job references policy, inconsistencies can occur, opening you up to allegations of discrimination or a defamation lawsuit. While the case may not be winnable, the hours put into preparation and the cost can be exorbitant.
The easy answer is granting consistent “neutral” references, says D’Angelo. Here is how to do it, and why you should:
If you give out references, you run the risk of surmising, opening you up to defamation claims. For example, D’Angelo has seen supervisors presume that there was a substance abuse problem without confirmation. For that reason, only confirm dates of employment, title and possibly, the final salary, but only if you have signed approval from the employee to release the salary.
To a lesser extent, appearance of bias can work its way into a reference, even if that’s not your intention. For example, you may give your white male employee a more glowing review than your African American female employee. This could be perceived as discrimination.”It’s a little harder to prove and to discover,” says D’Angelo. “It’s more of a concern in the context of a company that has a no-reference policy and a reference is given for a white male, but not an Hispanic or African American female.”
If you decide to only give out neutral references, one person should handle all of them to ensure consistency.
With the advent of social media references, such as LinkedIn, managers will forget that their company’s neutral-reference policy still applies.”The supervisor is flattered, he feels good about making the reference, then six months later, the person is fired,” says D’Angelo. While such inconsistency may not cause a case to be won, it may preclude a dismissal from a judge.
Sometimes, those asking for references will send a questionnaire that asks if the employee is eligible for hire. D’Angelo advises that you leave it blank or write “not applicable.”
There are two exceptions to the rule of neutral references, the first being that of interns. In order for interns to obtain academic credit from their university, a reference needs to be prepared from the person who supervised them, with the intern granting written permission. Some of D’Angelo’s clients will also do this for interns who are not seeking credit.
The second exception is when a former employee was fired for misconduct or malfeasance. For example, your chief financial officer was fired for embezzlement, although no charges were filed.”In some jurisdictions, there may be a duty,” D’Angelo says. For example, you may have a former employee who was found to be physically abusive or a sexual harasser. Duty falls under the category of job-related conduct. You should only disclose information about the situation if there was a conclusion to an investigation. An allegation is not enough, says D’Angelo.
That said, D’Angelo recognizes that managers will sometimes make an exception to a rule, and discipline for non-compliance by the manager will probably end with a slap on the wrist. “I’m not naïve, and my clients are not naïve. If the employee is friendly with the manager, he will likely be able to work around the policy. It probably happens with more frequency than I would care to admit,” D’Angelo says.