Reference Checks

Not long ago, I wrote a column about negligent hiring, which, as you may recall, is the failure of the employer to use reasonable care in the selection and hiring of employees.  On the other side of that same coin is Negligent Referral.  What is it?  Negligent referral occurs when a person serving as a reference for a candidate for employment intentionally lies about the candidate or intentionally withholds information he/she knows to be true that causes injury to a third party.

Here are a couple of extreme, but illustrative examples.  Suppose an employee is fired for stealing while working as a security guard by company A.  Then suppose the person fired applies for the same type of position with company B.  As part of their hiring practices, company B calls the candidate’s previous supervisor at company A and asks why the candidate left the company and receives a reply something like, “Oh, he resigned and left on his own.”  Finally, suppose the candidate is hired by company B and proceeds to steals from them, too.  Company B could sue company A for negligent referral because the supervisor knew the candidate was fired and lied about it.  That’s negligent referral.

Here’s another example: Suppose employee X is fired for engaging in workplace violence which causes serious injury to another employee.  Now, suppose X applies for a similar job with another employer down the street.  The company down the street calls to check on candidate X’s eligibility for re-hire or why he left the company, and the previous employer does not disclose the fact that X caused serious injury to another employee and X is hired.  Now let’s suppose that newly hired employee X once again injures a fellow employee while at work.  Not only can the new employer sue the previous employer for failing to disclose information they knew to be true – which caused serious injury to an innocent third party, but also the injured employee can sue in his/her own right for the previous employer’s intentional failure to be honest about the reason for X’s departure.

The point is that, if you’re asked to be a reference for someone, the best strategy is always to give honest answers or state honestly held opinions to any questions about the candidate overall job performance.  Why?  Because it’s just as dangerous to say a poor employee did a great job as it is to say that a great employee did poorly.  The negligent referral occurs when a reference intentionally lies about the candidate seeking employment.  Once again, honesty is the best policy when serving as a reference!