Giving out information for employment references

Ruskanen

Our company has a policy that we only give out name, position, and dates of employment for employment references. We give out wage information only with the signature of the employee. I would love to give out the accurate, and of course honest, information for the termination reason. That way, if a company wants to hire one of our former employees and they are going through the trouble of getting a reference, they can avoid their own problems if the person was fired for poor attendance, performance or attitude. I know that there are liability issues and that's why companies don't like to give out performance information. Do any of you give out the termination reason, and have you had any problems with it?

HS

It's not a good idea, no matter how much we might like to, to give out reason for termination. You can get yourself into a whole lot of trouble that way. What you can do is say that this person is not eligible for rehire and leave it at that. Let the hiring company make the determination to hire or not hire. There is always the possibility that the "problem employee" you termed was just not happy where he was and will turn out to be a "great employee" at the next company he works for. I've seen stranger things happen.

Gillian

Here's the skinny and a little bit of soapbox. The reason we are advised not to give out any information is because of the chance that someone will sue us for keeping them from getting a job,libel or defamation of character. The same attorneys who give us that advice also advise us about our responsibility to share information if the failure to do so is negligent. The truth is that you can tell the truth. Truth is that the person is not eligible for rehire, was dismissed because they were late to work 65 % of the time or anything else that is objective. It is not that the employee was unreliable, hard to get along with, a big problem etc. etc. I think that we should be more open, so long as we are truthful, and by doing so we well help ourselves hire the best and will help all the good people who don't get hired because an employer says it is against company policy to give out any information. A few years ago, a former client (20 employees) called me and said "I wanted to hire an applicant. I called the former employer who said it was against policy to give references, so I figure that he was a bad employee. I made the correct decision, right?" The vast majority of people work for very small business and the owners or those business do not know about the reference checking debate. Our reticence creates problems for good people.

santire

I noticed that this question came from Kansas. Kansas, like most states such as my own state of Texas, has a qualified privilege. I did a quick check on Kansas law and found a Kansas Supreme Court case that said the following "A communication is qualifiedly privileged if it is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, if it is made to a person having a corresponding interest or duty. The essential elements of a qualifiedly privileged communication are good faith, an interest to be upheld, a statement limited in its scope to the upholding of such interest and publication in a proper manner only to proper parties." 9 Kan. App. 2d at 622." The upshot of what the Kansas Supreme Court is saying for HR or any manager that is responding to a reference is that no liability is created if the information is requested by someone that has a good business reason to know (i.e. considering someone for a job) and the person responding is truthful or has good reason to believe the information is truthful. I might add that despite the dire warnings by my fellow lawyers on giving full references, the concern about liability is statistically exagerated if the information is true. A study was done by professors of a couple of law schools (Columbia University and the University of Housto) a few years ago wherein was found that an extremely small number of references ever result in a lawsuit. Basically, HR people are shooting themselves in the foot. "I don't tell you and you don't tell me" and so on and so on. I might also point out that if violence occurs and such information is not disclosed by the first employer to the inquiring second (potential) employer, the employer that did not disclose can incur liability if the second employer hires the person and the person commits further violence - a suit by the family of the injured employee.
Stanley P. Santire, JD

Don D

Stanley, I ain't disagreeing with you...but, it irks me to no end when certain people like the FBI, the local constabulary, even attorneys try to bully their way into HR and 'demand' information from the files (with no subpoena of course). The 'demand' attitude part is what gets them the very least information possible, usually NONE. I got a very demanding call from a Texas attorney last week, followed by his demand letter for information on an employee (name, shift, time arrives at work, address on and on). None of that is available to him and I told him so. He argued and asked 'do you know who I am?' I didn't and told him so. On his demand letter I wrote 'declined' and faxed it back. He might have gotten a bit more information had he approached us differently. Just today the nicest lady apparently the age of my mother called from an HR office in Vicksburg to check the references of a guy who was our worst troublemaker and was fired two months ago. She said he had indicated that he was laid off. I felt it was time to be honest and told her that his "statement to her was inaccurate". I also asked her, "Do you have other candidates?" She understood. I couldn't pass this guy off on her or anybody else. I wish all attorneys and their associations would band together and get something passed nationally that would free us up to tell the truth about past employees without us having the constant fear of it biting us in the B---. The fear that someone is or was violent or dangerous and feeling secure enough with that to reveal it on a reference check is the worst part of it all. Thanks for letting me vent.

santire

Don, don't thank me for your "venting". You almost sound like you are apologizing. Your follow up on my comment was very rational and well thought out - good advice from actual experience. My comment about the qualified privilege and the fact that the provider of valid information to a potential employer about a fromer employee applies to normal, true need to know, business situaions. You apparently already have a good grasp of that. No doubt some lawyers abuse their position; i.e. the potential to file lawsuits. Such lawyers tend to be destructive not only to the workplace generally. They damage the ability of other lawyers to handle matters in a cordial, and therefore in the long run, more effective manner by creating anger and even fear at the involvement of a lawyer even in the simple matter of obtaining information. Incidentally, I too would not share information with a lawyer about a former employee since, unless the former employee is going to work for the lawyer, the lawyer probably has no need to know. Don't get me wrong. Sometimes the weapon of lawsuit, or just the threat of it, is the proverbial bat that is needed to get a mule's attention. Despite efforts by eithics committees and seminars on effective communication, some lawyers simply do not know the difference between "lawyering" and profesionalism. Even more, some lawyers see all problems through the lens of conflict and pay little attention to the need to facilitate the efforts of managers, including HR professionals, to achieve productivity as in the need to exchange information about potential employees in a cordial manner. They often even forget that a prime obstacle in exchanging such information is the very sensitivity created by combative lawyers. A good HR professional will heed what lawyers say and then proceed with what that same HR professional has learned from reflection and experience.
Stanley