BY FORREST FLINN
Let’s face it, hiring and firing can be a daunting experience, but what do you do when an employee who left, willingly or unwillingly, lists you as a reference for a job that they are applying for? Can you share with an outsider that the employee was a poor employee? Conversely, can you share with outsiders that a previous employee was a stellar performer? This month’s blog will walk you through the ins and outs of giving references of previous employees.
Should you give references, as a rule of thumb the answer is usually yes, as long as you are being truthful and tying your recommendation to cold hard facts. But be aware of your responsibilities under your state’s laws regarding giving and getting references.
Most states have enacted legislation that gives employers qualified immunity when providing information for references. That means you’re protected from civil liability if you’re responding in good faith—in other words, without knowingly providing false or misleading information or acting with malicious intent. But you could still face a defamation, libel or slander lawsuit from the worker if you don’t limit the type of information provided and make sure it was given to the correct person.
In states without immunity statutes, such as New York and Massachusetts, it’s trickier to provide reference information beyond the basic dates of employment. But you may want to seriously consider giving more details if the reason for separation includes conduct that jeopardized others’ safety.
Here are some tips on how to avoid liability when providing job references:
- Review all applicable state laws. This includes those that apply where the employee resides and where the prospective employer is located.
- Maintain control of the information. Limit who is allowed to give references and what information can be provided. It is recommend that all reference requests go through a single person, usually the dealership’s owner or general manager.
- Be consistent in how requests are handled. Work to ensure that the same process is followed for each reference request to avoid any claims of discrimination. All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee. Have a written policy in your dealership where references by phone are not allowed–after all, you never know who is on the other end of the phone.
- Just the facts. Avoid giving opinions about the employee’s suitability for a prospective job. Only use documented evidence to share information about a previous employees performance. For example, if an employee was terminated for being late, you can tie the reference back to the number of days the employee was late using payroll records. Avoid using the words “I think” or “I feel”. By using quantifiable evidence you are protecting your dealership when giving the reference. Again, avoid using subjective statements and just stick to the facts when giving references.
- Get permission from the employee. It’s a good idea to require all job candidates to complete an application form that includes a release for employers from which they might request a reference. This eliminates any confusion down the road and makes things consistent.
- Only verify dates of employment, position, and if the previous employee is a candidate for rehire. I know of many dealerships and other organizations that only verify position, dates of employment, and will state whether the previous employee is a candidate for rehire or not when asked. I understand that by doing this one would feel that they are protecting the dealership by not giving too much information out. On the other hand, by adhering to this practice, you are truly limiting the value of the reference.
Let’s face it, the world we live in is a litigious one. If you take the time to develop a dealership policy regarding giving references you can really help a highly regarded previous employee obtain a new position and move upward in their careers. If you refuse to give a reference, you could truly be holding someone back. On the flipside, however, you could be accused of negligence if you didn’t disclose that you fired an employee for workplace violence by not disclosing the true facts.
After all, it is only good business.
Forrest Flinn, MBA, PHR, SHRM-CP, SMS has been in the motorcycle industry for more than 23 years and has been a true student and leader serving in various capacities. He previously worked as an implementation consultant for Lightspeed and as a general manager with P&L responsibility for a large metro multi-line dealership. Recently Forrest became an Associate Recruiter with Henry Lonski and Associates and is also the managing partner and chief visionary for a consulting firm that specializes in outsourced accounting, social media strategy, dealership operations consulting and Lightspeed/EVO training.