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Employee References

By Ashley G. Eddy and Ralph A. Morris

When asked to provide a reference for a former employee, employers may feel that they are trapped in a no-win situation. They understand that prospective employers are trying to shield themselves from negligent hiring claims by engaging in the “due diligence” of checking with former employers. However, providing details about a less-than-stellar former employee's shortcomings is rarely the best course of action.

An employer that negligently makes a statement about a former employee that turns out to be false or misleading may leave itself vulnerable to a defamation claim brought by the former employee. On the other hand, side-stepping a former employee's misconduct by “accentuating the positive” might leave the referencing employer equally vulnerable should the misconduct be repeated, as the new employer could sue the referencing employer for negligent misrepresentation.

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