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I’ve always heard you can’t say anything about a previous employee who puts you as a reference. All you’re legally allowed to do is confirm their job title and dates of employment. Doesn’t that make checking someone’s references basically useless?—LinkedIn Park
Even tight-lipped references like these can be revealing, Linked. For example, if a prospective employer learns that the position listed on my résumé as “chief of thoracic surgery” was better known around my old office as “parking attendant”—well, I think they know me better now than they did before, don’t you?
Still, such terse descriptions are a far cry from the detailed reviews of employee performance that managers are hoping for. The good news (for them, anyway) is that the dishy, tell-all descriptions they crave are perfectly legal. The bad news is that widespread misinformation about the law (along with the propensity for ass-covering for which HR departments are famous) means many employers still aren’t dishing.
It all started back in the 1980s, when disgruntled workers began winning lawsuits against various former employers for defamatory statements made while giving references. This could have been avoided through scrupulous honesty (truth is an ironclad defense against charges of defamation), but HR departments decided that just saying nothing was way easier, ushering in a regime of “just the facts, ma’am” policies that still persists today.
Even silence didn’t always work: The 1990s saw several cases of “negligent referral,” where the referrer was held liable because he or she DIDN’T mention negative information about a former employee. Such cases seem mostly to have been about violent or sexually creepy behavior and not, say, a predilection for hourlong bathroom breaks, but still: Damned if you do, damned if you don’t.
Eventually, corporate America deployed its army of lobbyists to remedy this situation. State legislatures responded with a host of “employer reference immunity” laws. Oregon’s, passed in 1995, is typical: It grants the employer a “presumption of good faith,” which basically raises the standard for defamation from “said something that was false” to “said something they knew was false just to be a dick.”
The upshot is that bitchy, one-star Yelp reviews of former employees are on firmer legal footing than ever, though most employers still don’t seem to realize it. That’s tough luck for hiring managers, I suppose—but it’s music to the ears of parking-garage cardiologists everywhere.
Questions? Send them to dr.know@wweek.com.
