Are Employers Legally Obliged to Provide a Reference

The employer receiving the reference should speak directly to the prospective employee about their concerns about the content of the reference, allow them to address the issues, and provide evidence of misleading or inaccurate information. The employee should be allowed to obtain other references for comparison purposes, or the employer may consider setting a probationary period to give him or her security. These are opportunities that can make all the difference for a potential employee, saving the employer costs and time that need to restart the recruitment process. A former employer can legally refuse to provide information about an employee other than their official name and dates of employment. While this is legal, it is generally considered to be as bad as a negative review, according to the reference website References-Etc. If you choose to refuse to answer certain questions asked during a reference request, you must apply this policy to all references you provide, not to a single person. References-Etc states that « it has been successfully argued that an employer has discriminated against an employee because it does not apply the same policy to all its employees. » An employee may challenge a reference that is unfair or inaccurate or that has led to discrimination, especially if such a reference results in the withdrawal of a job offer. However, employers should carefully consider the potential liability that could arise when they refuse to provide letters of recommendation to former employees. If you`re called as a reference for a former employee, it`s important to note what you can and can`t legally say during your conversation. Misinformation about what you can say can have legal consequences that can put your small business at risk. State labor laws vary on what former employers can legally say in a reference, so check with your state Department of Labor to make sure you don`t make mistakes. That being said, there are general elements that can be discussed during your conversation. It should also be noted that even if you explicitly state that your reference will be given confidentially and cannot be shared with third parties (including your former employee), they may still be able to see the reference you wrote.

You are not required to give your former employee a copy of the notice, but they may ask the recipient to do so under the Data Protection Act and ultimately you have no control over the provision of a copy. If the person brings an action, a court will order that the referral be disclosed. So it`s safer to assume that the topic will eventually see all the references you write. It is useful to verify the source of the employer`s hesitation regarding the provision of letters of recommendation after termination of employment. Companies often have such policies in place to avoid possible litigation due to defamation and defamation. A company should review its relevant state laws to determine what a potential employer can require of a current or former employer. For example, an Iowa company may be held responsible for publishing information that « violates the civil rights of a current or former employee » or « malicious » information. Any statements must be consistent with those made elsewhere, for example in evaluations or annual performance reviews. If a negligent, misleading or false reference is provided and the potential employer acts to its detriment (e.g., suffers financial loss), the person who wrote it may be sued for fraudulent or negligent misrepresentation. In addition, the former employee may be entitled to compensation for damage caused by a negligent reference. When providing references, an employer should be aware that the incumbent employer has an obligation to both the potential employer and its departing employee. The obligation imposed is that of due diligence and the provision of truthful, fair and non-discriminatory information.

Employers should keep control over the information their organization publishes, Rennekamp said. They could do this by setting limits on who can give a reference or what information can be provided. « However, we all need to keep in mind that all employers need information about past performance and behaviors to determine if a person is a good fit for the job, » she added. An employer may not provide or request a reference that contains any of the « protected features » and such a provision/request is illegal. The protected features are as follows: if a reference only provides very short answers or only answers yes or no to the questions, don`t be afraid to ask if that company has a guideline for references. If the answer is no, it may be a sign that the reference has had a bad experience with a particular candidate, but does not want to provide a negative reference. If an employer has discriminated against an employee in a dismissal, they may have the option of bringing an action before the Labour Court. Although this must be started within 3 months of the date on which the discrimination occurred. There is generally no obligation for employers to provide a reference for an employee who leaves the business, unless there is a contractual agreement that they are required to provide one or if they operate in a regulated industry. When a reference is given, it must be true, accurate and fair. An employer usually doesn`t have to provide an occupational reference – but if it does, it must be fair and accurate.

Workers may be able to challenge a reference that they deem unfair or misleading. There are no federal laws that deal with what an employer can and cannot say about an employee. However, many states have passed laws that grant employers qualified immunity by providing information for reference checks. These bylaws generally provide that an employer is immune to civil liability if they respond in good faith to a benchmark exam, said Molly Lee Kaban, an attorney at Hanson Bridgett in San Francisco. However, immunity is lost if it can be proven that the employer knowingly or recklessly provided false or misleading information or acted with malicious intent. If you find that you`re not getting a referral from a particular company or boss, it may be time to evaluate the candidate based on their overall application.