References For Former Employees

Restrictions Governing Who May Disclose Employment Information

The Firm reserves the right to exercise its discretion in relation to references for former employees. The Firm may provide favorable or unfavorable references as it sees fit. Employees who leave on good terms are often (though not in all cases) afforded letters of recommendation and the ability to use the Firm as a reference with confidence that he or she will be given favorable reviews.

Employees who depart on bad terms or whose performance was unsatisfactory may receive negative references without letters of recommendation, and without prior notice.

No employee is entitled to a favorable reference, and the Firm may decline to provide references other than to truthfully respond to inquiries regarding former employees by confirming dates of employment and position as the Firm sees fit. The decision in this regard shall be made solely by the President of the Firm and those who are expressly and specifically authorized by the President to do so, but no one else may make that decision or act without authorization in the context of commentary regarding former employees.

It sometimes happens that a person is not eligible for favorable references, but has friendships with co-workers that survive the termination of employment. It is human nature to want to help out friends who no longer work here in connection with the former employee’s job search.

Unfortunately, however, such admirable charitable impulses can expose the Firm to liability under more than one potentially applicable theory of law, including both civil liability and administrative action by state and federal agencies. Similarly, poor relations between employees may motivate a person still working here to make unfavorable remarks about former employees that are undeserved. Those motivations and perceptions may or may not be: (a) well grounded in fact; (b) motivated by emotion; or (c) based upon complete information. Whether the opinions and impressions of a person called upon to make an unauthorized comment regarding a former employee are well grounded or reasonably held is not the issue. What matters is that the Firm must be able to restrict and control the representations made by its through its personnel to outside entities, other employers, state, municipal or federal agencies  and individuals.

Unauthorized employment references, whether positive or negative, must be reported to the Firm immediately. Any person learning of such an event, even if not actually giving the reference, must report knowledge of that event to the President without delay, so that the Firm may correct any misstatements of its official position regarding former employees. The Firm reserves the right to seek indemnification from any person violating these requirements if unauthorized references or commentary regarding former employees leads to business losses, liability (including attorneys fees and court costs) or the like.

When asked by a former employee to provide references, a current employee should respond by stating, “You know that we have a policy that places my employment at risk if I try to help you out that way, without prior written authorization from the President of the Firm, who is really the person with whom you must have this conversation. I’ll put in a good word for you here at the Firm to try to help you, but I can’t take it upon myself to violate the Firm’s policy in this regard.”

When consulted by an outside person or organization (including but not limited to state and federal agencies, potential employers, subsequent actual employers, legal counsel for former employees, clients or others), current employees should refer the inquirer to the President of the Firm. The following example of such a conversation is offered as a model:

What about the right to free speech? The right to free speech does not apply to private employers’ restrictions on the dissemination or disclosure of information, and the potential hazards to the Firm warrant the need for control over this type of information, even if an individual is only expressing a “personal opinion.”

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© Brett Godfrey 2022. All rights reserved. No portion of this material may be duplicated, disseminated or reproduced without express written permission from the author.