Employer Guide to Giving and Getting References

Reference checks are a valuable but legally sensitive part of the hiring process. Employers who give references risk defamation claims, while those who refuse to provide information make the hiring process harder for everyone. Understanding the legal landscape helps you navigate reference checks effectively.

Conducting Reference Checks on Candidates

When checking references for a potential hire:

• Obtain written authorization from the candidate before contacting references
• Prepare a consistent set of questions to ask all references for the same position
• Focus on job-related questions about performance, reliability, and skills
• Verify dates of employment, job title, and key responsibilities
• Ask about strengths, areas for development, and whether the reference would rehire the candidate
• Document the responses for your hiring file
• Be cautious about relying on personal references, which tend to be biased

Useful questions to ask references include what the candidate's key contributions were, how they handled deadlines and pressure, what their relationship with coworkers was like, and whether there is anything the hiring manager should know to support the candidate's success.

Providing References for Former Employees

Many employers have adopted a policy of providing only dates of employment, job title, and salary to minimize legal risk. While this approach reduces exposure, it also deprives the next employer of useful information. Consider a balanced approach:

• Provide truthful, documented information about job performance
• Stick to facts and documented performance issues rather than opinions or characterizations
• Many states have reference immunity statutes that protect employers who provide good-faith references
• Obtain the former employee's written consent to provide references when possible
• Designate a single point of contact for all reference requests to ensure consistency
• Never provide information about protected characteristics, medical conditions, or workers compensation claims

Legal Risks of References

Two main legal risks arise from references:

Defamation: Providing false information that damages a former employee's reputation. To avoid defamation claims:

• Only share truthful, documented information
• Avoid exaggeration or characterization
• Focus on specific, verifiable facts
• Ensure the information is shared with someone who has a legitimate need to know

Negligent referral: Failing to disclose known dangerous behavior of a former employee who then harms someone at the new employer. This risk is most relevant for positions involving vulnerable populations, security, or safety-sensitive work.

State Reference Immunity Laws

Most states have enacted laws providing qualified immunity to employers who provide good-faith references. These laws generally protect employers from liability for reference information that is:

• Provided in good faith
• Based on credible evidence
• Not knowingly false or misleading
• Related to job performance

The specific protections vary by state, so review your state's statute before establishing your reference policy.

Best Practices

• Develop a clear written policy on providing and obtaining references
• Train managers that only authorized personnel should respond to reference requests
• Document all reference conversations, both given and received
• Use a consistent format and set of questions for reference checks
• Never retaliate against a former employee by providing a negative reference in response to a legal claim
• Consider using a reference checking service for high-volume hiring