Can You Give a Bad Job Reference?

When a hiring manager or recruiter contacts you about a former employee, be careful what you say. Even if you fired the former employee for a good reason, negative references could expose you to a retaliation or defamation case. Even if you were telling the truth, you may have to deal with the former employee’s complaint and any harm to your company’s image.

You don’t have to provide a reference about a former employee, positive or negative. If you do choose to provide references, be sure to keep your company policies on job references up to date. For legal advice about responding to professional reference calls, talk to an employment lawyer.

Understanding Job References

Job references are a common part of the hiring process. Most employers require job applicants to list their employment history, including employment dates, job duties, and their former employer’s contact information.

After a job interview, most HR departments do a reference check before making a job offer. Hiring managers typically contact former employers and personal references to find out about the applicant. Prospective employers may ask about attendance, work performance, and employment dates.

Bad Job References and Referrals

As a general rule, telling the truth about a former employee is legal but not necessarily recommended. There is what you are legally allowed to do and what you are legally advised to do.

In general, it is safest to give no references about a prior employee, positive or negative. Stick to the facts about dates of employment, job title, and other basic information. Having a standard company policy restricting what managers or supervisors can say about prior employees can help your company avoid legal complications.

Though a policy of limited job references may not be very helpful to prospective employers, it can protect you from potential legal claims.

Be Neutral and Stick to Limited Facts in Employee References

Philadelphia employment attorney Ronda K. O’Donnell advises her clients to stick to very limited dates of employment and employment verification information. “Ultimately, I end up counseling the former employer 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. Rather, references should be in writing. In addition, 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.

Employer Protections from Lawsuits for Bad References

Defamation is a false statement that causes harm or injures someone’s reputation. If you say something false and negative about a former employee and they lose a job opportunity, they can file a defamation claim. However, truth is generally a defense to defamation claims.

Like several states, “Pennsylvania has an employer immunity statute which says if the employer provides information in good faith, they have immunity from any legal action that a potential employer or the job seeker could take, as long as the information isn’t false,” says O’Donnell. “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 negative reference for a really bad employee? Is there a legal or moral obligation to inform the next potential employer? 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. You may expose your company to liability if your statements stand in the way of a job applicant obtaining other employment.

Use Caution if Providing a Personal Reference

As for personal references — when a supervisor or coworker acts on their own, not as a representative of the employer — O’Donnell is similarly cautious. For example, don’t use company letterhead to provide a personal reference.

She adds that providing a personal reference can open you up to 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 involved in a legal action — 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 company policies and procedures in place so that all employees and supervisors know what to expect. Everyone should understand what kind of information to provide and by whom. Don’t leave this to speculation. “Part of this is educating your workforce,” O’Donnell adds.

Have Questions About Providing a Reference? Get Experienced Legal Help

An employment lawyer can review your human resources policies and make sure you follow best practices. An attorney can also represent your business if a former employee takes legal action. If you need legal advice on how to handle a reference request for an ex-employee or other employment issue, contact an experienced employment law attorney.

For more information about this area, see our overview of employment law for employers.