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Bad References Are Not Illegal

Bad References Are Not Illegal

Alison Green | Ask A Manager

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.

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