Photo courtesy of Library of Congress circa 1939

Your former employee wants a job reference.  Do you provide just the basics to his potential employers — namely, confirming dates of employment and his last position — or something more? And what are the legal risks of doing so?

The topic is far from new on this blog (see this post from 2007 here, for example).  But Suzanne Lucas (a/k/a @realevilHRlady on Twitter) has a new column out in Inc. that gathered feedback from lots of prominent attorneys about the subject. It’s definitely worth a read to gain some differing perspectives.

As you will see, Suzanne was kind enough to seek my input too. Here’s what I said:

Here’s what happens in real life: For “good” employees, employers give recommendations. For “bad” employees, they say that they can just confirm dates of service and titles. There’s a wink and a nod, and everyone is supposed to understand the code.

But some states, like Connecticut, have created a privilege for employment references of current or former employers that were solicited with the employee’s consent. That means the employee can’t file a suit against the employer for giving a “bad” reference. What the court said is that “the integrity of employment references not only is essential to prospective employers, but also to prospective employees, who stand to benefit from the credibility of positive recommendations”. The rule is the same in at least 20 states.

So, if you’re an employer in one of those states, I think the key part of this is getting consent from the current or former employee to give the recommendation. Once that is done, the employer should have a good deal of protection–even if it gives a “bad” reference. If you’re not in one of those states, I would exercise some caution and seek legal counsel to figure out where the “safe” zone lies.

But even with the protection under the law, many employers will still want to subscribe to the “name, rank, serial number” theory of references. That’s fine, just don’t be disappointed when the employee you hire is a “dud” because another employer also subscribed to same theory.

Job references remain a tricky subject for employers to navigate.  Make sure you have a consistent policy and practice at your company so you don’t run into the issues highlighted in Suzanne’s column.