How to Avoid Legal Trouble When Providing an Employee Reference

As an employer, providing a work reference for a past employee can be tricky. It’s your job to make sure the information you’re providing gets into the right hands. In addition, if you provide a less than stellar review of the employee’s work, you could put yourself at risk of a lawsuit. Your former employee could sue you for libel or slander, or a prospective employer could sue you for a negligent referral.

It’s important to be truthful in an employee referral, but it’s also important to be discerning about the information that should and shouldn’t be provided. In this post, we examine a few good practices for employers tasked with providing such a reference:

  • Don’t provide a reference over the phone. Anyone can call an office, claiming to be a potential employer. Providing personal information about an employee over the phone opens you up to the risk of numerous privacy breaches. If someone calls asking for an employee reference, always request a reference form in writing. The legitimacy of a written request can be easier to vet.
  • Keep it factual and objective. Provide only information you can back up with hard evidence. If your employee was regularly late to work, present this information according to what your work tracking records indicate. Do not inject your own opinion—e.g., adding that the employee was lazy or didn’t care about the job.
  • And another thing! Pay attention to exactly what information the prospective employer wants from you—and provide only that. Don’t pile on with additional information or criticism the prospective employer didn’t ask for.

It is especially important for any employer to stay professional and avoid using any language that can be construed as inflammatory. Under Texas law, an employee who receives an inappropriate employee reference could have grounds for a defamation lawsuit—provided that the employer acted maliciously or deliberately deceitfully.

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