March 7, 2005Newsletter

Employment References: To Disclose or Not To Disclose

Employment Update

Recent developments have changed the way in which many employers respond to requests for references about former employees. Employers are increasingly concerned about openly responding to reference requests because of the rise in defamation lawsuits that former employees have brought against employers who have given references. To reduce the risk of a defamation lawsuit, many employers have adopted a policy of only confirming dates of employment and positions held. According to a recent survey conducted by the Society for Human Resources Management, ninety-eight percent of employers surveyed say they regularly provide the dates of employment for former employees. Yet, only sixty-three percent either regularly or sometimes comment on employees' eligibility for rehire. Further, less than half of the respondents regularly or sometimes address an employee's reason for leaving, qualifications, work habits and personal traits, or any incidents of violent behavior.

Employers' streamlined approach to responding to reference requests raises the question whether they ever have an affirmative duty to provide more information in response to such requests other than merely confirming dates of employment and positions held. In general, employers do not have an affirmative duty to disclose information concerning former employees in response to reference requests. Employers who do provide reference information, however, must be certain to portray the former employee's work history accurately, or they may face liability from such claims as defamation, misrepresentation, negligent referral or retaliation. Moreover, employers who do provide more information than merely confirming dates of employment and positions held in response to reference requests also may be liable for physical harm to a prospective employer or third person if they fail to provide accurate, complete information concerning an employee's history. Many employers are re-visiting their policies on reference requests in light of these recent developments and potential exposure from such claims, as well as recent state legislation seeking to encourage truthful references.

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