Follow the rules when providing ex-employee references

Supervisors remain confused regarding what they may and may not say for two primary reasons: First, they believe a law exists forbidding anything negative to be shared. Second, they feel it is unethical to give references on prior, hardworking staff and then give no information on associates who exhibited less-than-stellar performance.

Thankfully, in the state of Missouri, three common law torts define what can and cannot be said while furnishing references:

1. Defamation of character. This tort is defined as false or misleading statements or conduct that is communicated and results in damage to a person’s reputation. In a typical reference check, the organization has a qualified privilege. Truthful, relevant, documented facts may be supplied for the legitimate interest of the recipient. An enterprise is allowed to say negative statements if there is reasonable belief the comments are true and the inquiring employer has a need to know the information.

The business may lose the qualified privilege if the statements are made with malice, if a person starts name calling or expressing other innuendos, or if the thoughts are transmitted to an individual with no legitimate interest. Supervisors maintain personal liability under this law.

2. Intentional infliction of emotional distress. Under this common law tort claim, the conduct must be intentional or reckless, or outrageous and intolerable, offending the generally accepted standards of decency and morality. A casual connection is needed between the conduct and emotional distress. The emotional distress must be so severe, the former employee can barely function. Loss of appetite, sleep difficulties and weight loss do not count as severe under the law. Managers have personal liability.

3. Invasion of privacy. Disclosing private facts about a prior worker is forbidden under this law. A previous organization may not disclose private facts, unless there is a legitimate, business-related need-to-know reason.

Minimize liability

Four steps may be taken to supply references while minimizing liability:

• Be extremely truthful and accurate concerning facts released about former staff. Be careful about drawing conclusions regarding the employee’s behavior. Do not portray the conduct as worse than the actual reality of the situation. When in doubt about what to say, contact your attorney.

• Never exaggerate.

• Before the associate leaves the company, obtain his agreement about the truth pertaining to his reason for leaving and authorization to release the information when a reference is requested by a potential new employer. Create a release form. Include a statement relinquishing the organization from all claims that might arise from the reference. State the exact wording that will be utilized by the enterprise. Fully inform the laborer of what the release means in order for it to be an effective waiver. It is recommended that an attorney create the form.

• Ensure employee discipline forms and that performance evaluations are accurate, especially if the staff member was discharged. These forms document the supporting facts.

Only the poor-performing workers win when businesses do not give references to each other. It is time for organizations to be on the winning side. Providing references will keep the performance of all laborers in check, knowing you will communicate good and poor behaviors to potential future employers. From the perspective of the upcoming employer, making a good selection decision is hard but extremely critical to success. Properly sharing reference information can be a win/win for all enterprises.

Lynne Haggerman is president/owner of Haggerman & Associates, a firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@haggermanandassociates.com.[[In-content Ad]]