To give a reference or not? That is the question. In today’s litigious society, the answer for many companies is no.
After all, a company could end up fighting off an expensive defamation lawsuit if a supervisor gives a former employee a bad reference.
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“A number of companies take the course, as a matter of self protection, that they will not give a reference other than the equivalent of name, rank and serial number,” said attorney Lynette Labinger of the Providence firm Roney & Labinger. “They’ll confirm that the person worked for them, the title of the position and the dates.”
It’s not that companies are afraid of losing a defamation lawsuit in court. Lawyers say an ex-employee isn’t likely to prevail in a lawsuit against a former employer over a bad reference if the reference was truthful and offered without malice.
“The problem in a lot of these cases is that the cost of defending the lawsuit is far more expensive than the value to the employer of having responded to that inquiry at all, which is nil.” Labinger said.
But just refusing to give references other than name, rank and serial number doesn’t necessarily protect a company either. Sometimes it’s what you don’t say that matters.
For example, what if a former employee was fired for stealing? Is it fair to another company considering hiring that person to give only name, rank and serial number? Could that company later sue over the omission?
“It’s kind of a rock-and-a-hard-place problem. You are always doing something of a balancing test that makes you weigh the benefits of giving honest disclosure versus not disclosing information,” observed Bob Sullivan, a labor and employment lawyer at Adler Pollock & Sheehan in Providence. “I spend a lot of time on the phone with human resources people who will say, ‘This happened before, and I just got a call about this person. What the heck do I do?’ ”
The answer to that question depends on a lot of factors, not the least of which is the type of business. For example, a factory has less to worry about in just giving name, rank and serial number references than a hospital or preschool does.
A preschool that fired a teacher for having inappropriate contact with children may risk getting sued for defamation by that teacher if it discloses its reasons for firing him or her to a prospective employer in another state. But, on the other hand, a name, rank and serial number reference could allow the person to get a job at another preschool.
“Then you’ve got five multimillion lawsuits by the parents of these children. And you had knowledge of this person’s propensity for that kind of conduct,” Sullivan said. “Morally and fiscally, I think there’s very little question about what you’d do in that situation.”
The right course to take when asked by another company for a reference on a former employee isn’t always so clear, though.
Sullivan advises developing a reference policy and discussing any deviations from that policy with a lawyer. He has even heard of some companies that require former employees and their prospective new employers to sign a waiver before giving a reference.
Labinger said she sometimes negotiates the exact wording of a reference for her clients before they leave their jobs. She said that approach is better for both employer and employee.
“The employer can’t be accused of damning by faint praise because the language of the reference is negotiated, and the ex-employee knows exactly what’s being said about him or her,” Labinger said.
Workers who don’t have a negotiated reference can still find out exactly what is being said about them. There are a number of reference checking services that will contact former employers and submit for a fee a full report on what they said.
Lost in all the ducking and covering to prevent liability, Sullivan said, is that not giving references can hurt good employees who move on.
Although employers aren’t required to give references, Sullivan said a 1996 change to Rhode Island law encouraged companies to give unbiased, truthful references by offering employers protection from lawsuits over references so given.
“I take it as the General Assembly saying, ‘Look, we know common theory is just give name, rank and serial number, but we don’t really think that’s the best way to approach it. We’d rather have employers have some protection so they feel justified in being honest,’ ” he said.
That means the likelihood that a company giving a truthful reference will be held liable for defamation has been reduced. But the likelihood that the company will get sued hasn’t necessarily changed.
