There is a widely held belief among some employers that it’s somehow illegal to provide job performance information about a former employee.  There are no laws that have criminalized providing job performance information about current or former employees.

There may be civil consequences if a reference intentionally lies about a job seeker, but it’s certainly not a crime and it’s certainly not illegal.  This myth has come about because employers misunderstand the terms being used.  I do not intend, in any way, to offer legal advice; but, for the purposes of this blog, there are really only two types of legal actions that people who hire other people need to understand: crimes and civil wrongs.

An act committed by a person is a crime because we, as a society, have decided to define that act as a crime through our state legislatures and through the Congress of the United States.  Speeding through town at 90 miles an hour is only a crime because we’ve decided to define it as a crime – because it poses an unacceptable risk to public safety.  If someone is arrested for speeding, the state is the complaining party (the plaintiff), and the person accused of the crime of speeding is the defendant.  Crimes are the state versus the individual.

A civil wrong is usually one person or corporation versus another person or corporation.  The state ordinarily isn’t involved in a civil action.  A lawsuit is a civil action between two individuals.  For instance, suppose I think I didn’t get the job because you were playing favorites and hired your nephew instead of me.  I then sue you because I think I was wronged.  I become the complaining party, the plaintiff, and you become the defendant.  The complaint in this little example isn’t a crime; it’s an alleged civil wrong.

The only way providing job performance information to a prospective employer is a problem is if there’s a company policy against it.  A company policy doesn’t have the force of a law passed by a legislature, so it can’t be illegal to provide job performance information about a current or former employee.