Providing references can be problematic, and many employers will provide only dates of hire and position held, fearing that if they provide negative information about a former employee, they will be subject to a lawsuit for defamation, even if the statements are accurate.

However, employers do have rights and there are other issues to consider. For example, CA Civil Code Section 47(c) protects employers who respond to the question, “Is this person eligible for rehire?”

The section states: “This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.” If a former employer states the person is not eligible for rehire, that response alone says a great deal.

Another potential problem is with a “negligent referral.” This can occur when an employee was terminated for an “extreme” reason such as violence, theft, destruction of company property, harassment, etc.

When prospective employers call in for references and the prior employer does not reveal any information at all, there can be consequences to the “referencer” if the individual does something “extreme” at the new employer. The employer could find itself in litigation for a “neutral” reference when it knew of the “extreme” behavior.

The bare minimum of information may not be your best course of action. Nor is it advisable to provide a positive recommendation on an employee, leaving out negative information that should be disclosed. This is yet another form of negligent referral. There are also ethical reasons to consider. Finallly, how would you feel if you were the victim of a negligent referral and one of your employees suffered beause of it?

It is a good practice to establish a policy on how all references will be handled to avoid awkwardness and confusion. Things to include might be:

• All requests for references should be directed to a specific individual(s).
• Verification of the caller’s identity. For example, call the company back and ascertain the caller’s status.
• Establish whether requests must be in writing or may be verbal.
• Establish whether the reference given will be in writing or verbal
• Request a signed release from the former employee authorizing the release of information
• Absent a release, decide exactly what information you will provide. For example, dates of employment, position held, rates of pay and eligibility for rehire.