Periodically, an employer will ask about giving references for an employee.  Some feel compelled to provide at least a neutral review, others feel that they have to protect the world from making the same bad decision they did.  Still others think it is the “law” to provide the dates of employment and whether the person was eligible for rehire.

Bad ReferenceSo, what is the best advice?  Don’t return the call.  Or, if you happen to get stuck on the phone with someone asking for a reference, simply say “We do not provide references” and hang up.

Why?  Well, that’s a different question.  It is all about managing risk.  If you provide a reference and it is not sufficiently glowing, your former employee may sue you.  You could have told the absolute truth, but who, other than you and this stranger on the phone, really knows what you said?

And, what if that stranger is really the friend of a former employee with a recorder?  Think about it.  If you left a job under questionable circumstances, or even good circumstances, you may want to know what kind of a reference your former boss will provide.  Wouldn’t it make sense to have a friend call from “Vandalay Industries” (hopefully you get the Seinfeld reference) and ask for a reference?  Sure.  And, if you suspect your former boss has a particularly hateful view of you that is not necessarily accurate, wouldn’t you record it?  Darn right.  In fact, this exact situation happened to one of my clients.  They got sued and spent thousands having me defend a basically meritless claim only to settle for a few thousand dollars to cut off the legal expense.  Ouch!

If you don’t provide a reference, you have zero risk of this type of claim.  Given that the reward for providing a reference is basically nothing, this seems like the smart path.

Now, what if you want to be really sneaky?  Give that poor performing employee a glowing reference to get them a job quick so they will get off the unemployment rolls.  This path is also fraught with danger.  A Texas medical group did just that with a former nurse that provided dangerously poor patient care.  She was given a glowing recommendation and quickly snatched up by the new group.  Then she darn near killed a patient.

During the medical malpractice lawsuit against the nurse’s new employer, the injured patient obtained the personnel file for her from the original medical group.  As part of the legal process the file was provided to the new employer who went through the roof!  Then, they filed a cross-claim against the former employer for fraud and negligent misrepresentation.  I guess that approach doesn’t work either.

I realize it is counter to the system of cooperation between employers, but maybe my advice isn’t so bad after all.  If you tell the truth, you can get sued.  If you tell a lie, you can get sued.  If you say nothing – ah ha – you can’t get sued.

That said, if you still insist on providing references, at least control the situation.  Limit references to one supervisory employee who is trained to appreciate the risks and knows what to say.  Even if they did not work with the employee, they can get the scoop and sanitize it for the prospective employer.

P.S. In case you were still wondering at this point – there is no law about references.  The approach of reporting dates of employment and rehire status has been adopted by many very large corporations to limit their risk.  The idea is now so pervasive that it has effectively become a “law” in the minds of many.