One question that invariably comes up when
an employee is let go is, “Should I offer to provide a displaced
worker with a letter of recommendation?” The following advice is
from Paul Falcone, author of The Hiring and Firing Question and
Answer Book (AMACOM 2001).
According to Falcone, “The short answer to the above question,
is ¬No,’ but there may be exceptions or ways around this somewhat
thorny issue. The reason for the initial No is simple -- there is
little benefit to your company in providing references about prior
workers to prospective employers or headhunters. Yes, it would be
the nice thing to do, especially after a layoff. After all, there’s
nothing you’d rather do than hasten employment for your ex-workers
who will soon be in career transition. Even in cases where employees
weren’t very happy, helping them find productive work elsewhere
could save you potential headaches from wrongful termination lawsuits.”
The Downsides to Providing a Letter of Recommendation
The following claims could be brought by a former employee:
- Defamation, should you provide false
or injurious information that precludes an ex-worker’s gaining
employment.
- Invasion of privacy (for the disclosure
of private information).
- Statutory violations (e.g., the California
Labor Code makes it unlawful for any person by way of misrepresentation
to prevent a former employee from securing other employment).
- Unlawful discrimination (e.g., a former
employee could allege that a negative reference was given because
of her pre-termination objections to her former employer’s unlawful
and discriminatory employment practices).
- Negligence (e.g., a recent California
court ruled that, once a former employer elects to provide job
reference, the company must provide all relevant information regarding
the former employee, both favorable and unfavorable).
Of course, the truth may be an absolute defense to defamation claims
related to alleged “false and injurious statements” but not necessarily
to discrimination, negligence, or invasion of privacy claims. You
won’t want to face months of litigation in order to determine whose
version of the truth œ yours or the ex-employee’s œ is actually
correct.
Possible Solutions:
Create a policy requiring supervisors to refer all employee references
requests to human resources.
- Let your employees know that only specific
people in the company will be authorized to provide verbal references
or respond to reference requests, and identify who those people
are. This way, your company may have a defense should a former
worker direct a prospective employer to contact an unauthorized
company representative who provides negative references that damage
the individual’s employment prospects.
- If your company provides
employees with annual performance reviews:
Provide departing employees with copies. The reviews (as long
as they are signed by the employees) should serve as written proof
of any ex-employee’s strengths, weaknesses, and areas for future
development. Leave it up to the employee to decide whether or
not to share their evaluations with prospective employers.
- If your company doesn’t
provide annual reviews:
You do have the right to compose letters of recommendation for
your employees. However, if such letters are to be written, they
should be brief and based on factually documented information
in the employee’s personnel file, not on subjective claims related
to performance. (Even so, there is some risk, because the former
employee may disagree with your characterization of his performance.
As a result, the former employee may allege that statements in
the letter are false and injurious).
- You can simply refuse to provide any
subjective reference information whatsoever and limit your responses
to dates of employment and last title held.
- If you feel that a stringent “no references”
policy will hurt your ex-employees’ chances of reemployment, you
may wish to rely on a legal doctrine called “qualified privilege”
to protect your firm against claims of defamation. The principle
of qualified privilege offers limited protection to employers
in most states in defamation cases. To receive the benefit of
this protection, you must show that:
- You made reference statements in good
faith and based on credible evidence
- You and the person to whom you disclosed
the information (i.e., the prospective employer or headhunter)
shared a common interest
- You limited your statement to this common
interest
Some Final Advice
“Letting a person go” is never an easy or pleasant task. Regardless
of the circumstances, a manager should keep in mind that whether
firing or laying off an employee, the situation should be handled
in a fair and humane fashion. In the long run, this attitude will
serve to increase both your and your organization’s effectiveness
as an employer.
For more information about The Hiring and Firing Question and
Answer Book and other AMACOM business titles, click
here.
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