Employee references: A potential
minefield
of trouble
Many employers are concerned with the consequences that can arise when giving employee references. A recent American Bar Association teleconference, “Employee References: Damned If You Do, Damned If You Don’t,” explains the risks associated with giving a negative employee reference and the surprising possible consequences of withholding a negative assessment, if that evaluation is indeed accurate.
Most people grew up with the old adage “If you can't say anything nice, don't say anything all.” Employers tend to follow the same rule of thumb, limiting the information they disclose, in hopes of limiting their liability. Most of the time, handling a reference in this way is appropriate.
However, in some instances, revealing negative facts regarding the former employee is necessary. Kadlec Medical Center learned this the hard way after Lakeview Anesthesia Associates won $8.2 million in damages because of Kadlec’s failure to disclose information regarding a doctor's performance during his tenure with the company.
Lawyers should advise their clients not to misrepresent the circumstances surrounding a termination. Clients should also assess the propensity that the employee has of harming a third party, either physically or financially, and let that be the deciding factor on how much they should reveal. Furthermore, employers should apply the same rules to all employee references to ensure consistency and avoid lawsuits.
There’s a fine line when discussing an employee, whether that person is a former member of staff or a current one. Employers should be aware of this before providing references.
