What are You Allowed to Say When Giving a Reference?

As an employer, you need to handle a large variety of issues. When an employee leaves, you may be called upon to provide a reference. A work reference can be of great value to an employee since they need to be able to validate their past work experiences. Employers need to be careful and follow the law when it comes to giving references. If you make a mistake, it could result in legal action by the former employee. A knowledgeable employment law attorney will help guide you through the process.

What is a Reference?

A reference provides information about an employee’s past work experience and performance to a new prospective employer. Wisconsin law defines a reference in part as “a statement about an employee’s job performance or qualifications for employment.” A reference may be written or verbal. A former employer may provide a reference on request. An employer does not have a legal obligation to provide a reference or verify employment except in cases of federal employment.

Wisconsin Law Regarding References

Wisconsin law provides for the disclosure of a reference to a prospective employer, current or former employee, or bondsman or surety agent. Information that may be provided includes job performance, reason for termination or separation from employment, and job skills, knowledge, qualifications, and abilities of the former employee. You may also provide employment history, such as the date of hire and termination.

Tips for Providing References

There are several things to keep in mind when you provide references for former employees. Authenticate the person requesting the reference. Always tell the truth in a reference. Don’t go into needless details about particular issues that may have occurred during employment. Stay focused only on work-related matters.

Do not provide more than what is being asked for in the request. Do not make statements that cannot be substantiated, and refrain from editorializing. Instead, provide only factual information that is part of the employee’s work record. Put references in writing and have your attorney review the reference prior to distribution.

Avoid Potential Problems

It seems like it would be easy to provide a reference or a former employee, but problems can arise. Generally, employers are immune from civil litigation regarding references, except in certain cases.

Employer knowingly provided false information
Employer gave reference without caring whether it was true or against the law
References in violation of an employee’s civil rights

Employers should take care to prevent a possible defamation lawsuit. Therefore, it is in the best interest of your company to put a policy in place for providing references on request.

Use Human Resources to Provide References

In general, if your company has an HR department, you should make it a policy to require all references to be done through them. This ensures that all references are made properly and in accordance with the law. HR should have a copy of the employee’s file that includes start and end dates and other basic information such as job title and duties. Train employees to provide only specific details about a former employee or to refer a request to the HR department or to a person designated with this task.