Reference Checks

Sometimes people who are asked to be references feel an obligation to give the person who’s looking for employment a glowing recommendation. Honesty, however, is always the best approach. As I’ve written before, and want to restate, it’s just as harmful to the job seeker to overstate past job performance intentionally as it is to understate it intentionally. Overstatements or understatements – both are a gross disservice to the candidate and the prospective employer. From a legal standpoint, intentional overstatement or understatement could also lead to a lawsuit based on negligent hiring or defamation.

That’s why I’ve referred to this series as “The truth is an absolute defense” because being honest is so important to remember if you’re going to be a reference for someone. Suppose you know an employee was fired for, let’s say, stealing. Are you putting yourself at risk by disclosing that fact to a prospective employer? No!  Just as long as the statement is true, you have what lawyers call “an absolute defense.”

Carrying this example a little further, suppose you disclose the termination for stealing and, as a result, the prospective employer denies the job seeker a job. Then suppose you get an irate call from that job seeker who threatens to sue you. (Remember, it is the threat of being sued that causes many people to be unwilling to serve as references in the first place.)

Here’s what’s likely to happen: Let’s assume the disgruntled job seeker actually goes to a lawyer and explains what happened. Any reputable attorney is going to say something like, “Well, is it true that you were fired for stealing?”

“Well, yeah, but my reference told the prospective employer and I didn’t get the job!”

“We can sue, but we’ll lose because your reference just told the truth. There’s really nothing we can do because the truth is an absolute defense.” (There’s that phrase again.)