Legality of employer references

June 9, 2004 10:54 PM

Is it true that it's illegal for an employer to give an employee a reference beyond confirming that the person worked for the company over a certain period of time?

I work for a small, family-owned retail store. When people apply to work there, the job application form asks for three work references. My boss (the owner) insists that she can't call the references because they are forbidden by law from telling her anything useful, and therefore it's a waste of time. Consequently, several recent hires who seemed nice at first turned out to be very bad employees. I think that if someone lists a reference on their job application, they are giving us permission to contact that person and gather information about them. Is my boss right? How can we make good, educated hiring decisions without references?

posted by bonheur to law & government (25 comments total)

Hire for a probationary period, then let 'em go if they aren't worth keeping.

IANAL But I understand that companies open themselves to lawsuit if they say anything negative. It may even be possible they could be sued by the new employer if they speak positives, then the employee turns out no good.
posted by Goofyy at 11:05 PM on June 9, 2004

retail places i've worked at have policies against answering questions about employees like that, they are all redirected to company payroll, which would only be able to give info like start date end date, and pay.
posted by rhyax at 11:07 PM on June 9, 2004

IANAL but my understanding is that it's not illegal, but that the person giving out information can open themselves up to litigation if they say something negative about the person that causes them to not be hired. Many of the larger companies that I've worked for have had policies saying that, as a reference, you can only confirm whether or not a person was employed and the dates that that person was employed for. Nothing that would be considered a value judgement.

I'm almost positive that your family's business can call references and ask about the people that you're trying to hire, nothing illegal there, just don't be surprised if they don't give you any useful information.

(on preview: yeah, what Goofyy said)
posted by freshgroundpepper at 11:22 PM on June 9, 2004

Yeah, anymore you probably won't be able to get anything form the company or their manager.

Still, try asking for peer references. In particular peers who no longer work for the company. They'll be less sensitive to the legal implications of speaking with you, and you're more likely to get some useful information about the potential hire.

You can also work with an employment agency on a temp-to-hire basis. Particularly if you are bringing the hire to the agency, and all they're going to be doing is payrolling for a probationary period, you should be able to negotiate an extremely minimum hourly mark-up for a brief period while you try the potential employee out before deciding to hire them.
posted by willnot at 11:53 PM on June 9, 2004

As far as I know, you can only ask ( I live in California):
1. Did this person work for your company?
2. During what time period?
3. What was this person's job duties?

Beyond that, you can ascertain quite a bit from the tone of voice of the person that answers the questions. If it was an employee who isn't missed all that much, they will answer all of the questions in a rather flat manner. Otherwise, they will give an indication that the employee is missed: "Oh, (your name here) we really miss him."

Of course, sometimes the person answering the phone has no idea who the candidate is. This situation is also pretty apparent and doesn't help or hurt, in my eyes. Guess I've strayed off topic, but I hope it helps. Good luck!
posted by kamikazegopher at 12:01 AM on June 10, 2004 [1 favorite]

Another thing that is often asked is whether or not the person is elgible to be rehired by the previous company. This seems to be the way that they have gotten around saying something negative, though a "yes" answer is really still no guarantee that you aren't going to have problems with them.
posted by Orb at 3:25 AM on June 10, 2004

Of course, if you live in a small to middling sized town, you should never underestimate the power of the grapevine. Lots of out-of-school talk takes place during a 3 martini lunch, or at a Chamber of Commerce mixer.
posted by WolfDaddy at 3:59 AM on June 10, 2004

I read recently that a good trick is to call the previous employer during a lunch hour (or when you think they will be out of the office) and leave a message on their voicemail saying "X has applied for a position with Y company and gave me your name as a reference. If X is an outstanding candidate, please call me back as soon as possible". A lack of response (or a positive one) will tell you a lot.
posted by cbrody at 4:06 AM on June 10, 2004

bonheur, IAAL,BNYL (I Am A Lawyer, But Not Your Lawyer). The responses above have been generally accurate. It appears your boss is confusing cautious practice with legal requirement. The general policy of most companies to only give out "Name/Rank/Serial Number" type information is an effort to avoid even the possibility for a defamation lawsuit. Individuals sometimes sue for defamation when a bad reference check causes them not to get a job. The fact is that those claims are often hard to win -- in most states (including Illinois), there's a qualified privilege for such reference checks, and the plaintiff would have to prove that the facts conveyed by the prior employer were (1) false, and (2) that the prior employer either knew they were false, or acted with reckless disregard as to whether they were true. Statements of opinion are not, generally, defamatory. Nor are truthful statements ("He was late to work 82% of the time").

All that being said, most employers come to the conclusion that it's not worth the risk of being sued, regardless of whether the former employee can win the suit. Hence the prevailing view that only name, position, and dates of employment should be confirmed.
posted by pardonyou? at 7:12 AM on June 10, 2004 [1 favorite]

It might also tell you that they understand the law, and your stupid attempt to subvert it. You, on the other hand, not knowing what they think because you haven't spoken to them, take their silence to affirm your own preconceived notions and exclude from consideration a candidate that may in fact have been extraordinary. Way to go, genius!

And people wonder why I am so bitter about workplace issues.
posted by Irontom at 7:12 AM on June 10, 2004

My prior comment was aimed at cbody's post.
posted by Irontom at 7:19 AM on June 10, 2004

I figured, Irontom. Three hours go by without a reply, then I sneak in just ahead of you at the exact same minute. Seems like that kind of thing happens more often than random chance would allow.
posted by pardonyou? at 7:23 AM on June 10, 2004

Fucking lawyers.

I hate that I can't give out bad or good information about people when references call. Why can't I tell the truth? (No, that guy was fired from here because he was found to have made lewd comments to a woman and talked on his cell phone all day.) What the hell is wrong with that? It's THE TRUTH. If you don't want the truth, then don't do something to get fired.

When references call for crappy ex-employees, I try to answer their questions with a tone of disgust. Hopefully that gets the point across to NOT HIRE THAT PERSON without putting me out there to be sued by lawyers and the crappy ex-employee.
posted by aacheson at 7:26 AM on June 10, 2004

My father was called by a business acquaintance who was apparently looking to hire someone we fired for stealing business from us. I'm not certain of the law, but this acquaintance was able to ask, "Would you hire her again?" My dad replied, simply, "No." I live in Virginia, just in case it helps anyone. I do know that it is illegal to ask about the *performance* of a worker, but perhaps an innocent question about rehiring someone would fly...
posted by armage at 7:44 AM on June 10, 2004

Fucking lawyers.

Yeah. And fucking libel and slander laws. They suck.
posted by goethean at 7:57 AM on June 10, 2004

Armage: are you a lawyer and know for certain that it's "illegal to ask about *performance*"? Or are you just passing along more watercooler claptrap? I would be astonished to learn that a jurisdiction would choose to limit speech in the specific and unusual way you described.

I think pardonyou answered the question the most eloquently: it probably isn't illegal to call on references, but our pervasive litigious climate gives plenty of pause --- such that previous employers are reticent to go beyond confirming employment and the eligibility for rehire.

Bonheur: I wish you luck with your employer... "convential wisdom" is hard to overcome, especially when there's a large potential down-side for your employer. Hopefully pardonyou's comments will be good for another round.
posted by silusGROK at 8:25 AM on June 10, 2004

While everyone here seems very worried about finding good candidates, let me give an employer's perspective:

If you are employed at will, you can be terminated because your boss doesn't like you, even if this is for no reason relating to your work performance.

Your boss can make an official claim that you did something else, and that's it, it wouldn't do you any good to discredit this accusation, because you're an at-will employee, and will be terminated anyway.

But you're required to list this guy on your application.

People don't like to hear these things, because they'd rather trust other peoples' opinions as gospel rather than taking any measures to find things out for themselves.
posted by dagnyscott at 9:07 AM on June 10, 2004

Just to add to the confusion, there are companies out there that will call your former employer pretending to be a prospective employer, with the specific intent of trying to elicit a negative reference. See, for example, Documented Reference Check (www.badreferences.com). The company will call the former employer, and even after getting the "name, position, dates of employment" answer, will keep pressing with questions like, "I detect some hesitation in your voice, should I conclude there were some problems with this employee?" Most people consider it rude to just hang up, and after 10 questions like this (particularly if there was a problem with the former employee), there's a good chance the person will say something just to get the other person off the phone. Boom. Lawsuit.
posted by pardonyou? at 9:25 AM on June 10, 2004

Your boss can make an official claim that you did something else, and that's it, it wouldn't do you any good to discredit this accusation, because you're an at-will employee, and will be terminated anyway.

However, giving a reason does leave the door open to lawsuit, namely in the form of discrimination (my dad just went through it in GA, a right to work state).
posted by jmd82 at 10:58 AM on June 10, 2004

I've hired over four hundred people. In my opinion, the most accurate predictor of an employee's future behavior is their past behavior. If forced to do so, I'll hire someone without a reference check, but more often than not that ends up being a mistake. Reference checks are MUCH more important than interviews, in my book. Tell your boss that not doing reference checks is asking for trouble.

It is never illegal to ask questions about a potential employee, and in most states the old employer can give any written information - for instance, if the employee was documented as late 13 days out of 30, and was documented no-call no-show 3 days out of 30, the old employer can pass on that information. They can't say things like "Mike had a crappy attitude so we fired him" without opening themselves up to a lawsuit. BUT as a future potential employer you would never, ever share the contents of a reference check with that employee, good or bad.

If you want more info, e-mail me privately.
posted by pomegranate at 11:05 AM on June 10, 2004

Re: Checking if they're eligible to be rehired...

I had a near perfect record at a store I worked. Unfortunately, I took a leave of absence, but didn't realize that I had to contact the store by the date I listed on the LOA (I was unsure exactly when I'd be coming back and put an @date). This meant that, according to company policy, I was now unrehirable. It didn't help that in the few months I was gone, they switched HR people and the new person didn't know me as an employee.
posted by drezdn at 11:18 AM on June 10, 2004

IAAL, BNYL (I like that...)

To begin: this question is so utterly dependent on the situs of the company that it cannot be answered. I am not familiar with a law anywhere in the United States which prohibits honest and accurate negative references. Maybe there is one, but I would doubt it. But I am familiar with various causes of action that might arise out of the situation. While defamation is a possibility, I would argue that the more applicable cause of action would be tortious interefence with contract (or prospective contract).

However, any attempt to litigate this matter would be fruitless if the opinion of former employer is truthful. As stated above, there is a qualified priviledge to testify truthfully about the former employee's behavior regarding the term and condition of the relationship. That qualified priviledge does not extend to false statements.

So though I cannot give you advice since I am not your lawyer, rhetorically I would guess that it is very, very unlikely that it is illegal to give out useful information on a former employee.



(As a side note, since I am a plaintiff's attorney, I would argue that the former employer is under a duty to disclose important information. Take this example. Employer A runs a kindergarten. A calls Employer B regarding Employee C. A asks B all kinds of questions, and B doesn't mention that C is a known pedophile. A then hires C and he molests children. Under this framework, I would argue that B had a duty to disclose to A that C is a pedophile. If I was one of the the injured children's parent's attorney, I would sue Employer A and Employer B. And if I was defending A in such a case, I would join in Employer B. But this is getting too far off from the original question just to make the point that such important information should be disclosed.)
posted by Seth at 11:45 AM on June 10, 2004

Thank you all for your responses. I've also been thinking about this from the perspective of someone who is applying for a lot of jobs right now. I've had several previous employers tell me they would be more than happy to act as a reference on my behalf. I *want* my new employers to contact my previous employers, because I think it would bolster my chances, however it seems that even though every place I've applies requires three references on the application, none of them have ever been contacted. It's frustrating. Almost as frustrating as when my current boss hires someone who is very nice but never, ever comes to work. Or someone who has a very low tolerance for frustration and criticism and loses her temper at customers and coworkers who question her competence.

I also don't think it's fair to pick employees based on looks, which seems like what it's basically boiled-down to.
posted by bonheur at 6:39 PM on June 10, 2004

When references call for crappy ex-employees, I try to answer their questions with a tone of disgust

I have done that through punctuation:

"Your. Applicant. Is. NOT. Eligible. For. Rehire. With. My. Company. Got that?"

Those that don't get it deserve the crappy ex-employee.
posted by WolfDaddy at 6:41 PM on June 10, 2004

I actually gave a reference for my friend who was being interviewed for an hourly position at Apple, of all places. (This was a personal reference, although I had worked with him on some freelance projects.) They used an independent contractor for this, and asked general questions about how long I had known the person, the projects worked on, and my positive experiences with him on the project (although I don't believe they asked about the negatives, either). If you are really getting burned by bad choices, then hiring a professional to ask questions for you might be a good idea.
posted by calwatch at 10:43 PM on June 10, 2004