It should come as no surprise that the process of checking references is clouded by misconceptions, folklore, and legends about what an employer can and can’t say. For instance, one of the misconceptions about reference checking is that employers aren’t allowed to disclose anything except job titles and dates of employment. Well, on its face, that notion is false! An employer may elect not to disclose anything more than job titles and employment dates by adopting a policy that forbids disclosing anything more, but there’s no hard-and-fast rule, external to the company, that applies to every employer, under all circumstances, and at all times.
For those companies who have a “no-comment” policy, it’s fairly clear that their Legal Departments have advised them to adopt it. Why? Because of the perceived fear that, if employees are free to say anything except disclosing job titles and dates of employment, the company will be putting itself at risk of being sued for defamation. The assumption is that employees are likely to intentionally – or unintentionally – lie about a former coworker if they say anything else.
No matter what anybody tells you, there are no laws prescribing what an employer can or can’t say about former employees. The distinction that confuses people is between a policy adopted by the employer and a law passed by some legislative body. Policies are the rules a company adopts that outline things such as how many vacation days employees are allotted or how many paid sick days employees may take. When a legislative body meets and decides to control how fast you can drive your car and attaches a fine or other penalty for driving faster than that speed, that’s a law.
So, in a nutshell, employers are allowed to disclose whatever they choose to disclose. And, as long as whatever is said is either an honestly held opinion or documented fact, there is no liability for saying it. An employee may be reprimanded for saying it if there’s a policy that forbids it, but nobody’s going to jail!