Robert Half. <\/a><\/p>\nHowever, HR professionals can divulge more about former employees than just dates of service and titles without putting their companies or themselves at risk, provided they are offering accurate and unbiased information, HR experts say.<\/p>\n
Understand State Laws<\/p>\n
There are no federal laws that address what an employer can or can\u2019t say about a former worker. Many states, however, have enacted legislation that gives employers qualified immunity when providing information for a reference check. There\u2019s a caveat: The immunity is lost if it can be shown that the employer knowingly or recklessly provided false or misleading information or acted with malicious intent, says Molly L. Kaban, a partner at law firm Hanson Bridgett in San Francisco. <\/p>\n
Other states have few or no protections for employers. Massachusetts recently enacted legislation that provides qualified immunity for health care providers, she says, while New York state still doesn\u2019t offer any employers qualified immunity. To win a lawsuit, an employee in New York state would need to show only that an employer negligently made a false statement about them, she notes.<\/p>\n
Kaban adds that she has never encountered a reference-check lawsuit during her career. As long as employers keep references factual, the risk of being sued is low, she says, particularly in states with qualified immunity. <\/p>\n
\u201cThese qualified-immunity statutes were created to allow the employer to give an honest reference,\u201d she says.<\/p>\n
The key is to avoid inserting opinion when giving a reference.<\/p>\n
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\u201cStick to the facts, and avoid giving any opinion that could be construed as either positive or negative,\u201d says Kimberley Tyler-Smith, vice president of strategy and growth at Resume Worded, an online career platform in New York City. <\/p>\n
Subjective opinions, such as whether the employee is suited for the job they\u2019re being considered for, should be avoided, says David Aylor, founder and CEO of David Aylor Law Offices in Charleston, S.C. Additionally, any comments should be backed up with supporting evidence.<\/p>\n
\u201cIt is much better to give a balanced overview of the employee and not attempt to sway the prospective employer in any direction,\u201d he says.<\/p>\n
Be mindful that whatever is said during a reference check has the power to advance or stymie someone\u2019s career, notes Laura Mazzullo, owner of East Side Staffing in New York City. <\/p>\n
\u201cWe all have subjective opinions about what makes a candidate great,\u201d she says. \u201cSomeone\u2019s best employee is someone else\u2019s worst employee. You can help the other hiring manager by being constructive and specific in your feedback.\u201d<\/p>\n
Highlight areas of strength as well as areas where the candidate might need to improve, while understanding that the job the candidate is being considered for might require different skills than the one they held at your company, Mazzullo explains. <\/p>\n
Be Subtle<\/p>\n
In some situations, HR might want to discourage a hiring manager at another company from making a job offer because of a pattern of bad behavior or poor job performance, says Jill Santopietro Panall, SHRM-SCP, owner of 21 Oak HR Consulting LLC in Newburyport, Mass. <\/p>\n
However, rather than getting into specifics or coming right out and saying, \u201cDon\u2019t hire this person,\u201d there are ways to send a subtle message that the candidate isn\u2019t a good employee. For instance, Panall suggests saying, \u201cI can give you those dates and nothing more. This is a person I don\u2019t wish to discuss further.\u201d <\/p>\n
Stating that someone isn\u2019t eligible for rehire also sends a clear signal without getting into details. When employees sever ties with the company, Panall says, HR should sort each employee into one of three categories: do not rehire, would rehire and would love to rehire. <\/p>\n
HR has an obligation to let another company know when an employee has legal restrictions, such as a restraining order, or if there was any workplace violence or crime committed, says Chad V. Sorenson, SHRM-SCP, president of Adaptive HR Solutions in Jacksonville, Fla. <\/p>\n
Kaban warns that a prospective employer can sue another employer for providing negligent information if certain facts are withheld during a reference check, such as if the person committed a crime or was violent while working at the previous employer.<\/p>\n
\u201cIf safety is a concern, the best thing for an employer is to give an honest reference,\u201d she says.<\/p>\n
Share with Care<\/p>\n
HR should never divulge sensitive or confidential information about an employee without their consent. This includes any medical information, such as whether an employee has a history of mental health issues or the number of times someone took parental leave, Panall says. Steer clear of discussing someone\u2019s appearance, age, weight, gender, sexual orientation and even their salary, she adds.<\/p>\n
If someone leaves your company in good standing and would like a reference for a future job opportunity, ask them to sign a form stating that their colleague or manager may serve as a reference if the company is contacted, advises Rachel Alansky, owner of consultancy Seamless HR Solutions in Arlington, Va. <\/p>\n
However, Kaban says it might be a good idea for all reference checks to be directed to an HR professional, who will be more familiar with applicable laws. The HR professional may want to consult with the former employee\u2019s supervisor to give an appropriate reference that goes beyond confirming dates of hire and title.<\/p>\n
If a former employee has any outstanding claims or lawsuits against the company, be extra careful to avoid making comments that could be interpreted as a bad reference, Panall says.<\/p>\n
In those cases, she advises, \u201cconsult a lawyer, because if the employee could make the case that you\u2019re bad-mouthing them, it can impact the company\u2019s suit.\u201d <\/p>\n
Lisa Rabasca Roepe is a \u00adfreelance writer based in Arlington, Va. <\/em><\/p>\nImage by Nuthawut Somsuk \/ istock<\/em><\/p>\n
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