Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?
Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.
Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.
Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.
The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines:
- Limit the authority to give references to one or two careful administrators. The reason that lawyers tell you not to say anything in response to reference requests is to provide a simple solution to a more nuanced problem: can you identify one or two people of high integrity in your employment who can resist the allure of saying too much and confidently provide factual, specific information to prospective employers? If so, designate these people and no one else to provide references. Never give carte blanche to every supervisor in your business to give out references, even if Felicia specifically listed the supervisor’s name and number on her new application.
- Don’t give references out over the phone: I can’t tell you how often I have discovered that the fired employee has arranged for a friend or an investigator to call the past employer and find out what is being said in references. The conversation is usually recorded too (which is legal because Texas is a “one-party” state, allowing only one party to the conversation to know that it is being recorded). Needless to say, this rarely ends well for the employer. Just tell anyone who calls that you don’t give references without verifying the request and then ask the “prospective employer” to email a written request on company letterhead so you know who is really asking (while you are at it, double-check the email address from which the request came).
- Require the former employee to sign a release before you give out a reference. Ideally, you should request the release in the exit interview, telling Felicia then that you won’t provide any information in the future to prospective employers without it. As a second option, you can have the prospective employer (who is on better terms with Felicia at this point) send you a written release before you agree to talk. Here is a good release form from the Texas Workforce Commission that you can use.
- Just the facts and only the facts. Facts, in case the current political climate has understandably confused you, are provable by documents or testimony. They do not include opinions, gossip, suspicions, judgments, or speculation. That means you don’t use words like: unsafe, good, bad, possibly, attitude problem, incompetent, I think, I believe, dishonest, difficult to get along with, flighty, uncooperative, abrasive, drunk, high. Instead of saying, “I believe Felicia had an attendance problem”, which is an opinion, you should say “Felicia missed 8 unpaid days of work in the last 4 months after she used up all of her paid time off. She received two written warnings on this subject before she was terminated for excessive absenteeism.”
- Tell the truth and have supportable reasons for a job termination. Texas law protects employers who disclose truthful information about former employees “unless the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed.” So, it would be defamatory to speculate that Felicia was high when she wrecked the company truck without any evidence to support that malicious assessment. But if your company sent Felicia to a lab to give a urine sample immediately after the wreck, that test proved to be positive for unprescribed Oxycontin, the test was confirmed a second time, Felicia was given a reasonable time to produce a prescription but did not do so, following which Felicia was fired, you can truthfully state all of those facts without exposing your business to a lawsuit.
- Be consistent, non-discriminatory and non-retaliatory. Decide what kind of reference company yours is going to be and then be consistent from then on. You may only be safe giving the name, rank and serial number type of reference. However, if you and your managers are good at documentation and having explainable, non-discriminatory reasons for firing people, then you are probably safe in giving specific factual references. But give them for each and every employee. Tell the good and the bad on each employee consistently and your reference will not be discriminatory or retaliatory. Keep notes of what you said and then confidently go down the road after saying, “Bye, Felicia”.