WHAT CAN REFERENCES LEGALLY SAY ABOUT A FORMER
The answer to this question, if one already knows it, is about as obvious as it can be. If one does not know it, however, the answer can be disconcerting, confusing, and seemingly very complicated.
The answer comes in two parts. The first part is that the only questions a reference should ever answer are ones about job performance – and nothing else. The second part is a reference can say anything he or she wants to say – as long as it is (1) true or (2) an honestly held opinion.
Let’s look at the first requirement more closely. There’s all the difference in the world between asking, “How did so-and-so get along with other people?” and “How did so-and-so get along with other people on the job?” If the former question is asked, a reference should limit his or her response by saying something like, “As far as his/her ability to get along with others on the job, I would say he/she did well.” The same can be said of every other question a reference is asked. As long as the question and/or the response is limited to an on the job response, there’s no reason not to respond.
So, understanding that every response should be strictly limited to observations from the workplace, we can move ahead to the second part – truth and honestly held opinions. As most people know, “the truth is an absolute defense,” we’re good to move on. If, for example, a prospective employer asks a reference why the candidate left his/her last job, and the answer is, “He was fired for stealing company property,” and it’s TRUE, there’s no reason not to say it. Or, if a prospective employer should ask, “What did you think of so-and-so’s ability to manage others?” and the reference says, “I thought he had a lot to learn about delegating responsibility instead of trying to do it all himself,” and that’s the reference’s honestly held opinion, again, there’s no reason not to say so.
The danger comes when a reference decides to lie about the candidate. It’s important to note that it’s equally as dangerous to lie and say a poor performer actually performed well, as it is to lie and say a good performer performed poorly. Stated another way, trying to make a mediocre candidate look good by lying about his job performance is just as risky to the reference as trying to make a highly qualified candidate look bad by lying about some aspect of his job performance. Intentionally lying about a candidate is a bad strategy for any reference, regardless of whether it’s to help or hurt the candidate.
So, in summary, a reference can legally answer any job-related question as long as the answer is true or is an honestly held opinion. To do otherwise opens the reference to the possibility of being sued – either by the candidate who is denied employment on the basis of what was said or by the company that relied on what was said and was “injured” in some respect.
As much of a cliché as it is to say, “Honesty is always the best policy.”