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Wednesday, June 23, 2010

it's not illegal to give a bad job reference

A reader writes:

My wife and I go back and forth about this one all the time.

A former secretary of hers was moving and searching for a new job in her new city. The problem was that this person wasn't the most reliable employee. She was always late, took days off without calling and had some other quirks but when she was there she did good work.

My question is if someone calls you about a former employee what can you say and what can't you say?

I have always believed that you have to tell the truth because if you give a shining recommendation to a crappy employee it will come back to you.

A lot of others tell me that it is illegal to say anything bad about a former employees.  Is it really illegal?

No, it is not illegal, as long as what you're saying is factually accurate. 

What has happened is that some companies, in an effort to avoid the headache of nuisance lawsuits, have implemented policies that they'll only confirm dates of employment and title, rather than commenting on performance. These policies are pushed by lawyers who believe in playing it safe; after all, even if you can easily win the lawsuit, it's still a huge pain to have to deal with. So, the thinking goes, why even invite that hassle? It's easier to just refuse to comment.

As a result, this urban legend has sprung up, where tons of people seem to believe that it's actually illegal to give a bad reference. But corporate policies are not the law. (They're often not even followed by the companies that have them.) It's perfectly legal to give a bad reference, as long as it's honest.

I have always given honest references, because I want others to provide me with the same courtesy. However, when I can't give an employee a good reference, I'll warn her in advance, so that she knows not to offer up my name. (Some employers will still call anyway; really good reference-checkers won't just stick to the list of names the employee provides.) 

In any case, you win the bet with your wife.


Anonymous said...

about the value of a reference... is it really there? when you married did you check all the references? or recently there was a case of a topnotch colonel who was accused of stalking and kiliing women in Toronto... I wonder one month before he was caught, what would be his references, probably stellar... and what is the real value of those? and what would be a reference after?

Ask a Manager said...

Well, when you get married, you (hopefully) know the person a whole lot better than you know someone who you interviewed for a job. And actually, in cultures with arranged marriages where you often don't know the person well, people do rely heavily on "references" from people who know the person and his/her reputation.

In any case, of course references aren't perfect. Some of the time they don't carry much value at all. But you don't know before you make those reference calls if this is going to be a time where they have value or a time when they don't. I've made reference calls when I'm torn between two candidates, and the glowing references of one candidate have helped me make the choice. And I've made reference calls where I've become convinced the person would be wrong for the job. 80% of the time, references don't say anything that pushes me one way or the other -- but that 20% of the time when they do is really valuable.

Anonymous said...

Also take into consideration the ability to even get in touch with the reference. I’ve had candidates that have supplied me with a list of references who, when I tried to contact them I couldn’t get a hold of any of them and left messages that were never returned. How good can the candidate be if you can’t even get in touch with the references that the candidate supplied to you? Maybe great, but I won’t know since I moved on to other candidates who interviewed equally well and who I could track references down for.

Anonymous said...

Two things:

1. I have heard there are "code" words references use to describe a former employee who is interviewing with another company. I have been told that if the reference says "He's a nice person" then it really means "Watch out for this person." What say you AAM? Is this old school or is it still true?

2. In regards to Anon 2:58, are the references a complete reflection on the candidate? If a reference is a difficult reach, why should that reflect poorly on the candidate? Maybe that person can say the best of things about the candidate. If references can't be reached, then shouldn't the candidate be told? Things happen in life, and things happen in the lives of the references. It just doesn't sound right that the person gets bypassed.

Anonymous said...

I was sued once for saying "factual" things. If we had gone to trial, I would have been able to prove my case.

HOWEVER, I was sued as a civilian, and if I didn't get a lawyer to take pity on me, it would have cost me $2000 just for the initial consultation (as it was, most lawyers flatly refused to even take me as a client without a $20,000+ retainer).

Those nuisance lawsuits are commonly referred to as SLAPP (A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition). They can easily cost your life savings and there are no protections in this country against someone suing you and it costing you everything to defend yourself.

So, no, giving a bad reference is not illegal, at all. But it could cost you tens of thousands of dollars to defend against a "defamation" lawsuit. All it takes is someone with a lawyer in the family to make your life the worst hell on earth.

Anonymous said...

My favorite reference was "She's great when she's here." Completely truthful! :-)

Ask a Manager said...

Anonymous at 8:36 --

If there are code words like that, I've never heard about them. There are more subtle codes though -- meaning that a reference can hint around and damn a candidate with faint praise. But actually code words? Not to my knowledge.

On the question of what it means about the candidate if her references are unreachable, I do think it says something. A truly together candidate will have touched base with all her references ahead of my call, so she'll know if they're out of town or otherwise unreachable, and have made other arrangements to put me in touch with someone who can speak about her work.

If I can't reach a reference, I just tell the candidate I'm having trouble getting the person and ask her to facilitate the contact. That usually gets fast results.

Amy said...

I think there is another component to the way companies like to just verify dates and titles. Many times the request comes directly to HR, and the HR person probably never actually supervised the candidate and therefore can't comment on performance they have not experienced.

I'll never forget the time I called a reference, asked how he knew the candidate and he proudly exclaimed "I'm her fiance!" Shortest reference conversation ever.

Anonymous said...

hi, I am the first anonymous, and yes I take this institute of references with a big grin of salt. I am not a manager, just a professional and yes I have tons of good references. Sometimes I am asked about references... like I have a project that lasted 5 years. as a consultant I was extended numerous times, 3 months, another 6 and so on. When I am asked about reference I can only smile - why??? the fact of extensions speaks volumes. Or there was a client for whom I worked and then after interruption invited again for another year... and if I am asked for this reference I just so surprised: I was hired back, what better reference could you have? But any interview is a two way street, so the client obsessed with references immediately looses so much on my score sheet. Or another example, my son was on internship program in Switzerland for a year and he had to obtain a letter from supervisor. This supervisor was very strict and he didn't give him the best marks. Other supervisors for my son's peers gave exellent marks for sloppy jobs (my son managed to rectify this explaining his supervisor his mistake - what a tough task!, and what an experience for him). So... if you rely on reference you must take in account a personality of a referee, and how will you find it out in a matter of 10 minutes phone chat? make you better ask for a reference for this referee?
To understand if the person you are hiring is good or bad you need five minutes conversation plus samples of previous work. not a reference.

Anonymous said...

I agree with 6/25, 1:50AM anonymous

Another angle - our references inform us, if they receive a call. Therefore, the anticipation builds for a job offer. If it does not occur...ugh.

One then wonders, did the other candidate have a more vocal cheer section? Moreover, were their references of more value (someone the hiring manager knows, more prestigious title)?

Anonymous said...

who are you hiring, the referee or the candidate? for god's sake, speak to the candidate.

if you see anything other than what it actually says in the sentence 'he's a nice person', then you need to see a psychiatrist.

Anonymous said...

I wish I could find the internet article I once saw with a list of reportedly actual creatively negative references... the one that stood out for me was "any company would be extremely fortunate to get this employee to work for them..."