This is the third blog in a series on misconceptions about reference checking. This one deals with the notion that it’s illegal to provide job performance information to a prospective employer.
Once again, this is a popularly held belief among many employers that just isn’t true. There are no laws that have criminalized providing job performance information about current or former employees. There may be civil consequences if a former employer or 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 some employers misunderstand the meaning of the terms being used. If an employer or reference intentionally lies about a former employee by saying a good employee performed badly or by saying a bad employee performed well, the employer could be sued. Keep in mind, however, particularly if you’re the prospective employer, who’s likely to be sued by whom.
If, for example, every person serving as a reference tells you, in one way or another, that the candidate isn’t right for the job and, as a result, you decline to make that person a job offer, are you or your company the ones likely to be sued if the candidate believes his references intentionally lied about him? No! If anybody is going to be sued, it will be the former employer or one or more references the candidate supplied to you in the first place. And how likely is that? I wouldn’t have much confidence in a candidate’s judgment if he asked people to serve as references whom he didn’t believe would offer a fair assessment of his job performance!
More importantly, the burden of proof would be on the candidate to show that his own references had intentionally lied about him. But, once again, the point is there are no laws that make it “illegal” to discuss past job performance.