Employers May Be Liable for Negligent Referrals on Ex-Employees

LeisingerDana2015I got a reference request on an employee who we terminated a month ago. The employee left on bad terms and this potential employer had a lot of questions. What information is safe to provide?

Providing references can be a tricky area, and many employers will provide only dates of hire and position held, fearing that if they provide negative information about a former employee, they will be subject to a lawsuit for defamation, even if the statements are accurate. Before limiting your responses, however, there are issues to consider.

Eligible for Rehire

For example, Civil Code Section 47(c) protects employers who respond to the question, “Is this person eligible for rehire?”

The section states: “This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.”

If a former employer states the person is not eligible for rehire, that response alone says a great deal.

Negligent Referral

A problem also can occur with a “negligent referral.” This occurs in a number of ways, but the most frequent challenging situation is when an employee leaves after an extremely negative situation—for example, theft, harassment or violence.

When prospective employers call in for references and the prior employer does not reveal any information at all, there can be consequences down the road if the individual continues in the negative behavior.

One case involved an employee who engaged in extremely bizarre behavior, ending in his termination. A neutral referral was provided to a subsequent employer, who also terminated him. That termination, however, was followed by the individual shooting several people who were involved in the termination.

A case such as described above is extreme to say the least; however, it demonstrates the care employers must exercise in this area. There may be a moral responsibility to report extreme behavior, particularly if it relates to the job the former employee is seeking.

The bare minimum of information may not be wise. Nor is it advisable to provide a glowing recommendation on an employee, leaving out negative information that should be disclosed. This is yet another form of negligent referral.

Establish Guidelines

It is best to establish guidelines on how all references will be handled to avoid awkwardness and confusion:

• Draft specific policies. Following those policies will help when those reference calls come in.

• All requests for references should be directed to a specific individual(s).

• Verify the caller’s identity. For example, call the company back and ascertain the caller’s status.

• Establish whether requests must be in writing or may be verbal.

• Decide exactly what information you will provide. For example, dates of employment, position held, rates of pay and eligibility for rehire.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger