(Published March 30, 2009)
No matter how you slice it, there are two different ways to look at references and what we should or should not say, and you will never get everyone in our industry to agree on the answer.
One school of thought is that there is little if any point to a reference if all you do is confirm dates of employment, title, and salary. What does that tell the prospective employer? That the employee is smart enough to be truthful with the information that he knows will be verified, and not much more.
The other school of thought is that the risk of a lawsuit is too great and you should never say anything about anyone, because if you say anything negative and the applicant doesn't get the job, you'll get sued.
Personally, I belong to the first group. If an applicant was fired for sexually harassing his co-workers and didn't get laid off for lack of work the way he claims, I want to know about it. On the other hand, if he was beloved by all who knew him, won the Mr. Congeniality Award three years running, went the extra mile and then some, and won company awards for the excellent work he produced and is only in the market because his wife was transferred and he's looking for work near her new job, I want to know that, too.
It has always been my position that you can't get hurt by telling the truth. In fact, most if not all states have implemented laws that offer protection to employers who offer truthful and supportable references about their former employees, even if those references are negative. But a recent court case out of Massachusetts brings up another issue that you need to be aware of if you give out reference information: malice.
The 1st Circuit Court of Appeals recently ruled that an e-mail sent out following the termination of one employee could constitute defamation, even though every word of the e-mail was verifiably true. The difficulty revolved around the fact that Massachusetts has a very old law on the books allowing an individual to sue for "actual malice," even if the statement is true. The e-mail in question stated that the employee was fired for violating company policies — which was true — but it was sent to approximately 1,500 employees.
If the facts of the termination are correct, then in my opinion the employer had a valid reason to believe the employee was dishonest. But did the company's entire North American division need to know that? Did they even need to know that the employee was fired? No. A simple statement to the employees affected by his absence would have been sufficient: "Effective today, Joe Smith has left to pursue other opportunities. Please direct all questions about issues Joe was working on to Mary Jones at extension 123." Additional information could be provided to anyone who has a valid need to know.
I will grant you that this is not a reference case. I will also grant that given the publicity this case has gotten locally if not nationally — it was first brought to my attention by a friend in Tennessee — any potential employers are likely to be aware of the reason this employee left. This situation has not changed my mind about references; I think this is a very dangerous decision with very real First Amendment issues. But it does serve as a warning that while giving out negative reference information is not illegal as so many employees — and employers — believe, it should be managed carefully and consistently.
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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