Should I Give Employee References
By VICKY BROWN
Now, while I know that (particularly for good performers), your first inclination is to say an enthusiastic ‘of course’. Let’s stop, and take a beat.
Employee references are more complicated than they first appear.
Sure, you want to help Sally move forward in her career – but the reality is, you also have to keep an eye on protecting the company. Any reference from someone at a manager level or above, is representing the company. So, there’s more to think of than initially meets the eye.
When you think of getting or giving a reference for a former team member, you probably think of just telling the prospective employer what the job was, what they did for you, and how skilled they were or weren’t. After all, honesty is the best policy – and best defense – right?
Well, not so fast.
Let me ask you, can you successfully walk the tight rope between an untrue factual statement and an opinion? Well, if you’re giving a negative reference, one of those could expose the company to liability for defamation. The difference between ‘he was late all the time’ and “there were many times she was late’ could be the difference between a lawsuit or not. Would you want to worry about parsing your words that carefully on a phone call. I’m an experienced HR professional, and I wouldn’t.
And remember, even if you are just being honest – you ‘ll still have to spend money to defend a claim. Another thing to consider – any reference should be in context – if the company terminated, or negotiated an out package for the employee, and someone who was not involved in that process gives a glowing reference, it could expose the company – because it sends a mixed message. For that among other reasons, all references (even letters) should be run by HR first.
So what should you, as a business owner, do about the whole reference question. First up, have a policy. There isn’t a world where dealing with references on an ad hoc basis puts your company in a good position. Now, in the world of HR, we would – of course – prefer that all references go through HR, without exception. But, I know that in the real world, that rarely happens.
So, the first thing you should think about is phone references vs. letter references. Because phone references tend to be ‘on demand’, it can leave too much open to interpretation and someone’s memory of what was said. And there’s the question of whether or not you tell the person that someone asked for a reference on them.
For all those reasons, we have a policy of providing written only references. We’ll either fill out the form many reference seeking companies will send. We only provide the employment equivalent of name, rank and serial number – you know, dates of employment, job title, and sometimes salary (although, in many states it is not illegal to ask for prior salary). Or we’ll send them a letter with that information. We don’t get into quality of work, or performance questions.
We do allow reference letters, provided to the departing employee. But before that letter gets into their hands, there are lots of things to think about, and lots of boxes to tick.
Any reference letter should again state name rank and serial number. You might also want to include the most recent or significant job responsibilities. And, if the person did good work, then stick to what you observed – again in relation to those job responsibilities, and use specific examples if you can. Steer clear of personality assumptions, either positive or negative. “She’s shy but does great work” or “He’s sometimes has a bad attitude”. Wandering into that type of purely subjective territory can cause problems.
“The difference between ‘he was late all the time’ and ‘there were many times she was late’ could be the difference between a lawsuit or not. Would you want to worry about parsing your words that carefully on a phone call. I’m an experienced HR professional, and I wouldn’t.”
Now I know you may take issue with me around the ‘bad attitude’ statement (many clients do). You may think, I know he has a bad attitude, because I can see it, everybody can see it. I would simply challenge you with, are you observing the attitude or are you observing specific behaviors that you don’t like – such as not taking direction, or not showing flexibility, or communicating poorly to colleagues and customers.
On a side note – yes, I know I sound like I’ve lapsed into “HR Westworld” territory – but the fact of the matter is, you can (and most likely will) be challenged on – how do you know someone’s attitude. And the answer is, you don’t – what you do know, what you can observe, are a series of unwanted behaviors.
OK- back to the reference question. Let’s chat a little about social media – actually all social media, but particularly Linked In. Their recommendation feature is a stealth timebomb. People ask for, and are given, recommendations from managers etc. on LinkedIn all the time. But again, even if they don’t know it, those statements are considered representations from the company. So, if that employee has performance issues that you have to deal with, those recommendations may very well come into play – and not in a good way.
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So again, having a policy that allows for written references only (either by form or a letter from your company), requiring that all references be reviewed by HR before release, and prohibiting managers from doing social references for people on their teams – you put the company in a good position to be protected.
By the way – one big stop sign to all this is if the employee was suspected of, or found to have been engaged, in serious misconduct, sexual harassment or workplace violence; or if you are legally required to provide performance information (such as for law enforcement jobs). In those cases, absolutely do not take this on yourself – consult legal counsel before you respond to any inquiries. Why, because you could actually face liability if you don’t disclose certain information. Different states have different laws on the subject, so again – always check with counsel.