Available Upon Request? Qualified Immunity for Employer References

The standard advice for employers faced with this dilemma historically has been to say very little of substance about former employees in order to minimize the risk of potential liability. For better or for worse, that approach also allows the former employee considerable flexibility in characterizing the reasons for his or her job movement. Following that approach, the vast majority of law firms have adopted neutral reference, or 'name, rank, and serial number' policies. An employer response under such a policy provides a confirmation that the employee worked at the firm for a specific time period in specific capacities, but declines to comment on the quality of work by the prospective hire, his or her job performance, or the circumstances surrounding his or her departure. This 'say nothing' regime, while avoiding liability for firms, has the negative consequence of restricting the flow of information in the employment market. Candid information about an employee's performance and qualifications, both positive and negative, is unavailable to a prospective employer. Thus, excellent candidates may lose the benefit of what would otherwise be strongly positive references, while the limitations of poor candidates may not be fully conveyed to the market.