What Can You Say About a Former Employee?

So you fired an employee because you smelled alcohol on his breath right before he jumped into the cab of a company delivery truck. You let your assistant go because she was late for work at least two days per week and was recalcitrant when confronted.  You found your salesman so abrasive and arrogant that you couldn’t stand him and just eliminated his job one day.

If you are a Texas employer, what do you say about these and other former employees when their prospective employer calls for a reference? If you have attended any human resources management seminars in the last 10 years, you have been told to “say nothing”. Give out the dates of employment and salary, but no specifics on the employee is the frequent advice of employment lawyers.

I understand. I often say that too when I realize that explaining the nuances of giving out references takes too long and will probably be misinterpreted by my audience. But for this blog I am going to try to take off your straitjacket and tell you as a Texas employer how to give out informative references in a way that will give you a good chance of avoiding legal trouble:

  • Rule No. 1: Don’t say anything until you have a signed release from the former employee. Savvy employers during their application process will get the applicant to sign a document that says something like “I authorize investigation of all statements contained in the application and I authorize the references and any former employers to give you any and all information concerning my previous employment, my character and my behavior and release them from any and all liability for providing such information, whether I agree with it or not.” When you get a request for information from a prospective employer, first ask for a faxed copy of the signed release before you provide anything to the prospective employer.
  • Rule No. 2: “Just the facts and only the facts.” What do you say about your smelly truck driver? Was he drunk? How do you know? If you are going to tell a prospective employer about any issue involving drugs or alcohol, there is only one fact that matters: did you test the employee to scientifically confirm your suspicion? If you have in your hand a written result showing a positive drug or alcohol test from an independent lab, you can say, “That employee was fired for a positive drug (or alcohol) test.” Whatever the issue is, don’t relate your opinions about your former employee. That means you don’t use words like: unsafe, good, bad, attitude, incompetent, I think, I believe, dishonest, difficult to get along with, uncooperative, abrasive, arrogant, etc. If the employee violated a written company rule, such as a requirement to report to work on time, and you have documented proof that she was late twice a week, that is a fact you can report. If you have written disciplinary warnings on this employee, that is a fact you can share with a prospective employer. If you just don’t like your arrogant salesman, that is not a fact but your opinion. A good way to tell whether you are dealing in the realm of facts is whether you have significant documentation to support what you are telling the prospective employer.
  • Rule No. 3: Only one person in the company gets to speak for the company. Never give carte blanche to every supervisor in your business to give out references. Even if the former employee gives his immediate supervisor’s name on his new application and so that manager gets the call, the manager should be trained to say, “I’m cannot give out that information. You will have to talk to our human resources manager.” The human resources manager can then insist on the written release, state a few facts, document who called and what was said, and protect the company from any claims of slander or discrimination.
  • Rule No. 4: Don’t feel obligated to respond at all. There is no legal duty requiring most companies to respond at all to a prospective employer, particularly on the issue of “eligible for rehire”. And if you don’t say anything, you can’t have defamed the former employee or otherwise opened the door to a lawsuit. Recently the U.S. Fifth Circuit Court of Appeals, which hears cases from federal courts in Texas, ruled that a medical practice didn’t have to reveal to a prospective employer a doctor’s employment termination due to impairment from addiction to prescription drugs. Interestingly, the only defendants who got in trouble in that case were the ones who decided to respond to the prospective employer and misled the new employer by giving glowing reports such as “excellent clinician”, “asset”, and “recommended highly” but never mentioned the drug use of which they were aware. The only problem that can come from not saying anything at all is discrimination if you only decide to shut your mouth occasionally. Write and follow a policy that says “we never answer the ‘eligible for rehire’ question” and you will be fine. Refuse to answer the eligible for rehire question only with a disabled former employee, and you may have a discrimination suit on your hands.

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