Consider the notion that no good deed or lapse in professionalism usually goes unpunished.

Is there anything more dreaded for a business owner or manager than to have to put up with and eventually terminate a bad employee? Maybe. How about the uncomfortable reference check or inquiry regarding your old problematic employee? The situation gets even more complicated when your conscience weighs in, urging you to caution the person on the phone about the impending nightmare that is awaiting them should they hire your former employee.

There are no federal laws that guide a business owner as to what they can or cannot say about a former employee.

Before you start rattling off your personal experiences with a former employee, no matter how cathartic and satisfying the process may be for you, I urge you to consider the notion that no good deed or lapse in professionalism usually goes unpunished. When it comes to talking about prior employees, you can easily land yourself in a lot of hot water and potentially even a lawsuit if you are not careful. Despite how things ended between you and your former employee, you would be wise to keep conversations about their tenure at your business both brief and professional.

There are no federal laws that guide a business owner as to what they can or cannot say about a former employee. However, many states have their own legislation offering “qualified immunity” to employers when responding to reference checks in good faith. (Qualified immunity is a legal doctrine which keeps individuals from being held personally liable.) This immunity is lost though when it can be proved that the information provided was false or misleading. Since the laws differ from state to state, it is important to know what your state law says on the mater. Even in states that offer Qualified Immunity, an employer could still face a defamation or negligent referral lawsuit.

If you are still compelled to provide more information on an employee to a potential employer, remember that any such disclosures should be made in writing and only upon written request from the person requesting the additional information. It is important that any additional information offered be FACTUAL. (Not your opinion, perception or overall feeling regarding the employee.) Keep your emotions and speculation out of the document completely. Any additional information you choose to provide should be limited to documented evidence of the employee’s job performance.

If you never wrote the employee up for bad behavior or acts, if there was never any formal counseling or conversations regarding specific issues, if there are no police reports or other verifiable third party information, understand the information you are considering sharing is most likely undocumented and therefore not appropriate for citing in your written communication to another employer. When it is all said and done, wounded feelings, suspicions, and hearsay really amount to nothing more than just your personal opinion; a personal opinion that could turn into a very expensive lawsuit.  

Most employers will only give dates of employment and positions held when responding to a reference check. This is the smart move.  I couldn’t agree more with this procedure and advise businesses I work with to refrain from disclosure of any further information when speaking to any employers conducting a reference check on ex-employees.

Is it worth the risk, just to get back at your ex-employee?

So, when the occasion presents itself to give input on a former employee, I urge you to show restraint and in most cases, zip it!…Is it worth the risk, just to get back at your ex-employee? 

If you still find yourself absolutely determined to report ex-employee misdeeds, always seek legal guidance by a competent “HR Attorney” before you do.  You’ll be glad you did.

Would you like to learn how to correctly and accurately document employee issues? Would you like to talk about how to handle referencing a particular former employee? Contact Law 4 Small Business. We have a team of HR advisors and attorneys available to help you make the “smart” decisions when it comes to your business and your employees.

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