What Questions Can Employers Answer Regarding an Employee?

by Tia Benjamin

When it comes to reference checking, employers are caught in a quandary. Most managers want as much information as possible about their new hires, and in a close-knit small business, whether an employee will fit in with his peers is a critical question. But actually getting that information is a difficult challenge. Fearful of getting sued, supervisors and managers often provide the bare minimum of information about their own employees -- yet failure to answer questions can also be grounds for a lawsuit.

Name, Rank and Serial Number

Increasingly, employers have taken the approach of providing only the basic verifying information about an employee, often referred to as "name, rank and serial number." Because an employee can sue the company for defamation if he can't get hired elsewhere, managers may be tempted to limit the potential for liability by verifying only the employee's job title, years of employment and salary. But as long as you stick to some basic rules -- such as providing only factual, verifiable and job-related information once the employee has provided the proper authorization -- the release of information is typically considered as a "qualified privilege," protecting your business from defamation lawsuits.

Job Performance

Factual, pertinent information about an employee's job-related performance is acceptable to provide to another employer in a reference check. None of the information should be a surprise to the employee, and it should all be verifiable and given in good faith. Don't base your statements on unfounded accusations -- keep your assertions factual, objective and without judgment. Another way to confirm the employee's poor performance while minimizing company liability is to simply state if the employee would be eligible for rehire, based on the company's policies and procedures.

Work Habits

It's acceptable to provide relevant, supportable details about an employee's work habits in response to a direct question. Avoid judgments and qualify your statements with verifiable examples. Keep a neutral tone and ensure your comments are strictly limited to work-related situations. For example, explain how the employee's lack of attention to detail meant he made workplace safety mistakes when he failed to follow appropriate safeguards.

Danger to Others

Always disclose situations where the employee may pose a danger to others if he is hired in the new position. This will help you avoid being charged with negligent referral as well as minimizing the associated ethical implications of recommending someone to a job for which he is clearly not suited. For example, a school that gave a good reference and failed to mention a teacher's charge of sexual harassment was found responsible when that teacher went on to molest a 13-year-old student at the new school. Likewise, an employer that provided a reference letter stating an employee had resigned due to corporate restructuring, when in fact he was fired because of his bizarre and threatening behavior -- including bringing a gun to work -- was charged with negligent referral when the employee shot and killed multiple people at his new place of employment.

About the Author


Photo Credits

  • Creatas Images/Creatas/Getty Images
Suggest an Article Correction