Almost all employers on a regular basis receive calls from a prospective employer requesting information about a former employee. Today, most employers, fearful of a potential defamation or some similar legal claim, respond with nothing more than the period of employment and position held. Some even decline to respond at all. Rarely does a former employer provide any useful information regarding such things as the person’s job performance, disciplinary action, or the reason for their departure. In some instances, responding human resource managers, fully appreciating the dilemma that lack of information creates in a hiring decision, especially if it is negative, will politely ask the inquirer, “Do you have any other candidates?” Message delivered!
The inability to obtain needed information about a prospective hire can, in some circumstances, create the potential for claims of negligent hiring or negligent retention, especially in today’s litigious environment. Such claims can arise if an employee who was not fully vetted engages in conduct that harms another, often physical assault of a customer or fellow employee. The usual theory is that the employer was negligent by failing to confirm whether the person had a history of criminal assault or similar conduct before hiring them. If the claim is one of negligent retention, the argument is generally that the employer knew or should have known of the employee’s predisposition to engage in violence yet continued to employ the person. The fact that the employer tried but failed to obtain such relevant information despite making sincere efforts is rarely a sufficient defense. Employers, often knowing that they are not likely to obtain useful information, nonetheless make the effort to at least be able to demonstrate that they tried. Compounding this entire issue is the current trend to prohibit employers from delving in to an applicant’s criminal history during the hiring process. The “ban the box” movement is a perfect example. More and more jurisdictions are considering it to be unlawful for an employment application to require an applicant’s criminal history before hiring. In those jurisdictions, such inquiries may only be made after a job offer has been extended.
Knowing What You’re Allowed to Say
The answer to what an employer can say when asked about a former employee is simple and relatively straightforward — anything that is truthful and provided in good faith. In recognition of the problems faced by employers’ inability to obtain needed information about an applicant, some states have passed legislation to protect employers from defamation lawsuits as long as they have acted in good faith. To be immune from liability, the employer cannot knowingly or intentionally disclose information that is false or misleading. In an effort to control the information provided to other employers, many companies prohibit managers and supervisors from providing reference information. The process of responding to such inquiries and what is provided in response is limited to the human resources manager or some similar individual. At least in theory, a person in a managerial or supervisory position is the “company” for most legal purposes. It is not uncommon for a prospective employer to make direct contact with an applicant’s former supervisor to try to elicit more detailed information. An unwary supervisor could easily make derogatory comments about the former employee in an effort to be honest and help them avoid a hiring mistake. Defamation lawsuits are sometimes the result.
Understanding State Regulations and Past Employees
Numerous states regulate what an employer can say about a former employee. A few states even require the employee’s consent in order to provide information about their prior employment. In most instances the information that can be disclosed includes the reasons for termination or separation, job performance, job description and duties, length of employment, eligibility for rehire, and in some states, disciplinary matters. Virtually every state provides for employer immunity unless the information disclosed was knowingly false or misleading. A few states provide that the prospective employer must provide a copy of any written communications from current or former employers that may affect the hiring decision. Most states with such a requirement make it contingent upon a written request from the prospective employee, usually within a specified period of applying for employment.
There are several states that have adopted laws on so-called “service letters.” Upon request, usually written, a former employer is required to provide the requesting former employee a letter that states the reason for the employee’s termination, and in some states, additional information regarding certain aspects of their employment. This generally relates to job duties, job performance, pay rates, and eligibility for rehire. In those states that provide for “service letters,” it has become increasingly common for employee advocates and plaintiff attorneys to encourage terminated employees to request such letters. In fact, some employee advocates urge employees that suspect that they may soon face termination to begin arming themselves with documents and other evidence to support a challenge to a potential termination. Concerned employees are told to keep a record of workplace events affecting them, copies of performance reviews, disciplinary actions, wage history, and to keep track of informal comments by supervisors or others made about them. They are advised to ask to see their personnel file and make copies of any performance reviews or reports contained in the file. Providing access to an employee’s personnel file is mandatory in some states, and in some instances former employees can request a copy of their personnel file. For obvious reasons, personnel files should be carefully reviewed before being provided. Quite often documents that had no reason to be included were nonetheless made part of the personnel file.
When providing information regarding a former employee, whether in response to a request by a prospective employer, requested by the employee personally, or as part of a state-mandated “service letter,” the rule is the same. As long as the information is truthful and provided in good faith, the employer should be immune from any defamation lawsuits. This is one of those rare instances where the old saw “truth is a defense” truly applies.
Publication date: 5/27/2019