When less is more: Developing a protocol for responding to requests for info about former employees

We’ve all experienced it: you make a phone call to check up on references for a job candidate and you hit a brick wall of “name, rank and serial number” non-information. Why does that happen? Consider the following examples, and then we’ll talk about it:

 Emma has been your employee for about a year and a half. Although you started out with high hopes for her, she has not lived up to your expectations. You can’t seem to motivate her and she is either unable or unwilling to motivate herself. You’ve just reached the point where you’ve got to decide when and how to let Emma go when she solves the problem for you by announcing that she’s moving to South Carolina to be with her family. Bullet dodged.

A month later, you get a phone call from an employment agency in South Carolina wanting an “honest” assessment of Emma’s skills and job performance. What do you tell this person? Realistically, if you give the employment agency an “honest” assessment of your “opinion” of Emma’s track record, talents and potential, you’re probably not going to get into too much trouble. On the other hand, if your assessment of Emma includes matters which could be considered defamatory (i.e. “facts” as opposed to “opinions”), you could be inviting a lawsuit. Do you know exactly where to draw the line?

Susan has worked for you for about six months. She has all the makings of a superstar. You feel a real pang of disappointment when she suddenly announces that she’s leaving to go to work for one of your competitors, an industry buddy of yours that you have known for ages.

Shortly after Susan’s departure, an accounting irregularity is brought to your attention. A follow-up investigation reveals that Susan appears to be responsible for a number of falsified work orders and for unauthorized work done “off the books” at the expense of your company. Do you call your buddy, Susan’s new employer, to give him a heads up?

In this example, because you have done your own internal investigation first, you could probably contact the police, tell them the results of your investigation and ask them to investigate further. These actions would likely be considered privileged under California Civil Code section 47(b) which establishes an “absolute privilege” (against a defamation lawsuit) with respect to statements made “in any . . . official proceeding authorized by law.”

But watch out. Any statements you make to Susan’s new employer about your internal investigation would most likely not be privileged. If it turns out your suspicions about Susan are in error, you could be looking at trouble, particularly if your buddy takes adverse employment action against Susan because of your well-meaning “heads up”.

Larry came to work for you two years ago. During that time, he has filed what you consider to be two bogus administrative complaints, one with EEOC and one with DLSE, against your company. These complaints have cost you time, worry, and attorneys’ fees. Larry has finally announced that he is leaving and going to look for employment elsewhere. Good riddance to a bad apple.

A couple of months go by and you start receiving reference check calls from prospective employers asking about Larry’s employment and whether you would consider him eligible for rehire. Your gut impulse is to tell these people what you really think: that Larry is a trouble-making, malingering, money-grubbing thief. Should you give your impulse free reign?

Okay. This is an easy one. We know you know better. But you should be aware that several federal courts sitting in California have awarded money damages against employers under section 704(a) of Title VII which prohibits retaliation by employers against individuals who file charges with the EEOC or otherwise participate in Commission proceedings. Federal courts of appeal have also held that former employees may sue for unlawful retaliation under Title VII when the employee claims that the former employer is “blacklisting” him with prospective new employers. We have seen quite a few of these claims, usually filed in conjunction with a harassment and/or constructive termination claim.

The point is, prospective employers frequently ask former employers for information about an individual’s employment history. The “wrong” answer to these inquiries can subject the former employer to liability for defamation and/or retaliation under California law. A bad reference can also add fuel to the fire of an already-existing wrongful termination lawsuit.

So, you know the old adage. The one Thumper gave us in Bambi: “If you can’t say something nice, don’t say nothing at all.” The fact is, employers can and do minimize potential legal exposure by strictly limiting the nature of employment data revealed to anyone concerning current and former employees. This is easily done, and is foolproof as long as your policy is applied consistently.

What do we mean by consistent application? We mean don’t give glowing recommendations for people you like versus name/rank/serial number recommendations for people you don’t like. You need to establish and follow a policy whereby all requests for information are routed to one individual. That individual should confirm only the fact of the former employee’s employment, the former employee’s dates of employment, and the former employee’s job title(s) with your company. That’s it. Tell the inquiring party that it is against your company policy to reveal salary information or to answer the inevitable “is this person eligible for rehire” question.

Your current employees should also be instructed that they are not to write their own letters of recommendation for former employees.

Go ahead, simplify your life. Follow this protocol every single time. Now you know why it makes good business sense to do so.

By Jane A. Rheinheimer
February 10, 2015

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