Can You Give a Bad Job Reference?

The legality of saying something negative about an employee in Pennsylvania

Perhaps you’re looking for a job, or maybe you’re a manager who is asked to provide a reference for a former employee seeking a new job. Either way, you may have heard that it’s not allowed to provide negative reference information, and you’re wondering what exactly is permitted to say in this context.

As a general rule, telling the truth is always allowed. But for every rule, there are nuances and exceptions. In the context of providing a reference for a former employee, there is what you are legally allowed to do, and what you are legally advised to do. Philadelphia employment law attorney Ronda K. O’Donnell advises her clients to stick to very limited employment verification information. “Ultimately, I end up counseling them to be very neutral in their reference, which makes it sort of meaningless as a reference, but it provides the employer with the ability to control the information,” she says.

The problem with more information is that it can result in more exposure and less ability to control outcomes. O’Donnell recommends that reference conversations not take place over the phone, where there is then no paper trail of what was said, but should rather be in writing. In addition, she points out that even a glowing reference can be problematic.

“If you give one person a good reference, and then you don’t give somebody else a good reference, that could be some sort of suggestion of discrimination or retaliation. It’s more important to be uniform,” she says.

“Pennsylvania has an employer immunity statute which says if the employer provides information in good faith, they have immunity from any actions that a potential employer or the employee could take, as long as the information isn’t false. But that doesn’t mean a lawsuit won’t be filed and the employer incurs expenses to defend it. A lot of the exposure on these things is the expense of defending.”

What about a really bad employee? Is there a legal—or moral—obligation to let the next potential employer know? Actually, no. “I tell my clients, ‘Listen, just because an employee wasn’t successful in your environment doesn’t mean they won’t be successful in a different environment,’” O’Donnell says. In other words, you really don’t know how someone will do from one situation to the next, and you may expose your company to liability if your statements stand in the way of them obtaining other employment.

As to personal references, O’Donnell is similarly cautious. She clarifies that this is a person acting on their own, not as a representative of the employer—they can’t use company letterhead, for example to provide a personal reference. Nonetheless, she cautions that providing a personal reference can open up potentially uncomfortable issues. “Be aware that you might be putting yourself in a situation that you don’t want to be. You may be asked some pretty tough questions. Individuals can also be sued—for defamation, invasion of privacy, tortious interference with contract.”

One of the key issues O’Donnell identifies is the need to have clear and uniform policies and procedures in place, so that all employees and supervisors are aware of what to expect. Where everyone understands what kind of information may be provided, and by whom, there’s less to speculate about. “Part of this is educating your workforce,” O’Donnell adds.

If you need advice on how to handle a reference or other employment issue, you can find an experienced Pennsylvania employment law attorney. For more information about this area, see our overviews on labor law and employment law for employers.

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