I received an interesting note from a reader asking how to handle someone providing a bad reference. It’s a great question. References are a part of the hiring process. But they’re a part we really don’t control. Well, except for providing the names and contact info. The rest is between human resources and the reference.
So I thought it might be good to offer some insight about job references. As I was getting information, I discovered that there’s a lot more to job references than meets the eye. So I’m going to break the information into two parts. Today we’ll talk about the legal aspects of job references and on Tuesday we’ll discuss using references in your job search.
To help us sift through the legal side of job references is our friend Heather Bussing. She’s an employment attorney and regular contributor on HR Examiner. Heather has shared her expertise with us on several occasions. This post is one of my faves.
From a legal perspective, do references matter? I mean, doesn’t everyone’s references always say good things about them?
[Heather] There are two main legal issues with references: 1) defamation; and 2) misrepresentations about dangerous employees.
Defamation: Employees have sued former employers for defamation, claiming that the employer said something negative and untrue about them that caused them not to get a job. If the employee can prove that what the company said was untrue and caused them damage, they can collect damages for the wages they lost by not getting the job.
Some states also have “Blackball” or “Blacklisting” statutes that make it illegal for companies to make misrepresentations to try to prevent a former employee from getting work. These laws were passed when companies shared lists of people who were labeled as union organizers or “known Communists.” While these labels don’t come up often anymore, the statutes are broadly worded and get used over negative references. Here’s a list of State Blacklisting laws.
Dangerous Employees: People hurt by a violent or dangerous employee have sued the employee’s former company claiming that it knew the employee was dangerous, but gave a glowing reference anyway. In one case, a new assistant principal sexually assaulted a student. The student sued the principal’s former school because it gave a great reference when it fired the guy for something similar.
References are one of those places where employers are between a rock and a hard place. If they say something bad, they can be sued for defamation. (Although, some states provide immunity to companies for defamation in references.) If they say something good, they can be sued for making misrepresentations, or for not disclosing that someone is dangerous.
This is why often, companies just confirm dates worked, title, and salary – that’s all.
How do references differ from background checks?
[Heather] A background check usually involves both references and a check for public records that can include a check for credit history, whether someone declared bankruptcy, and whether they have a criminal record.
When a potential employer does a background check using a third party, like a credit reporting company or a company that runs record checks, they have to give notice and let the candidate know if they didn’t get the job based on something they found. These requirements are contained in the Fair Credit Reporting Act (FCRA). Here is more information on Your Rights Under the FCRA.
Can companies contact someone you don’t identify as a reference?
[Heather] Sure. Companies can contact anyone for a reference. This happens most often when they know someone at one of your former employer’s company. But many employers will go outside the reference list given by the candidate to get a more objective picture of the person. This gets more common the greater the responsibility and salary.
Are LinkedIn recommendations the same as giving a reference?
[Heather] Sort of. They are public statements about one person’s experience working with another person that a hiring company can read and rely on. But they never really tell you much because they will always be fluffy and favorable. Otherwise, people wouldn’t allow them on their profiles.
What can a person do if a reference says something untrue or unflattering?
[Heather] Not a lot. If it is truly egregious, you could sue for defamation. But those cases are difficult to prove, and will take way more energy and time than you have or want to spend. You may also have a claim and additional rights under the FCRA, which includes the right to set the record straight with a company that didn’t hire you.
But the most important thing is to try to prevent it from happening the next time.
When you learn of untrue or negative information, it’s good to find out exactly what was said and by whom, then contact that person with a written response and a request to stop saying it.
In putting together your letter, stick to what was said and don’t attack the person you are writing to. Explain why what was said is not correct and ask that your letter be put in your file at the former employer. That often takes care of it for future problems. And obviously, stop using that person as a reference if they were on your list.
My thanks to Heather for sharing her expertise with us. If you’d like to read more of her wisdom, be sure to check out the HR Examiner blog. Also watch for Part 2 which will dive into using references during your job search.
Image courtesy of HR Bartender0