When a former employee pursues an opportunity with a new employer, requesting job references is a standard part of the process. However, job references have recently become a controversial topic, as some employees have brought defamation lawsuits against employers for giving negative information. As a result, some employers are reluctant to give references, which can stymie the new employer’s hiring process. Both state and federal law is implicated.
Texas Law: In 1999 the Texas Legislature enacted H.B. 341, which codified case law concerning job references and defamation lawsuits (see sections 103.001-103.005 of the Texas Labor Code). Under the statute, employers are protected from defamation liability regarding information released about a current or former employee to a prospective employer, 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” (Sec. 103.004).
To help employers understand how the law works in practice, the Texas Workforce Commission (TWC) offers the following tips:
- It’s best not to provide job reference information in response to a “cold call,” unless you know exactly who is calling and why. As the TWC advises, the person could be a bona fide representative of an employer, but he or she could also be a private investigator (hired by the ex-employee to find out what you’re saying about them), a debt collector, a stalker, or even an identity thief.
- Provide only objective information — facts that you can prove with either witness or with documentation — and steer clear of opinions or value judgments as much as possible.
- Only provide the information that is being requested.
- Share with the new employer only information that you know to be true.
- Avoid using inflammatory language — statements that could be construed as an attack. The TWC offers the example of saying a former employee “ was fired for using drugs” (inflammatory) versus saying he or she “ failed a drug test on (date)” (non-inflammatory).
As part of the hiring process, some employers are having applicants complete a written release form that authorizes past employers to release information; the TWC offers a sample release form here.
Federal Law: The Equal Employment Opportunity Commission (EEOC) also has rules concerning job references. Employers are prohibited from providing a negative or false reference (or refusing to give a reference at all) based on the employee’s gender, age, religion, color, race, national origin, or disability.
Conclusion: Most employers try to avoid all potential liability by giving references containing only dates of employment and positions held. This is factual, simple, and avoids any subjectivity that could lead to liability.
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