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There’s a common misconception that employers are limited in what information they can provide regarding former employees. However, if you’re contacted by an employer seeking a reference for a terminated employee, you can legally reveal the reasons you fired the person. It might be in the company’s best interest, though, to keep your response short and provide minimal information.
Abide by Company Policy
Before saying anything to prospective employers, review your company’s policy regarding providing employee references. To reduce the risk of defamation lawsuits, some companies only allow managers to disclose basic, verifiable information such as job titles, dates of employment and salary. Others won’t disclose information without a release form signed by the employee, either provided when the employee left the company or given to prospective employers as part of their hiring process.
When revealing negative information about a former employee, stick to documented facts. If you fired the employee because he was habitually late, only disclose this if you have evidence, such as written warnings you added to his employment file. If you fired someone for having a bad attitude, don’t discuss this unless you have proof; for example, formal complaints from customers or co-workers. If you can’t back up your negative claims, a former employee could sue you for defamation, saying that you deliberately tried to damage his reputation. Even if you’re in the right, you have no way to prove it.
Approach giving references the same way for all employees. If you give good employees glowing references but only confirm basic information for fired employees, prospective employers might discover this, especially if they’ve contacted you about other employees. This sends up a major red flag that you don’t want to reveal why the person left. Your ex-employee could also use it as grounds for a defamation or discrimination lawsuit. In general, it’s safest to reveal as little information as possible. The less you say, the less chance there is it could be misinterpreted or used against you. However, you should respond to reference-checks rather than ignore them. Not returning a fellow employer’s call also signals you’re not willing to discuss the applicant.
Telling Other Employees
If the employee’s former colleagues ask about his departure, it’s also wise to limit the information you provide. Revealing the details behind his exit compromises his privacy and can damage employee morale, causing others to worry they’ll meet the same fate. Don’t address the termination. Instead, say the employee decided to move on. Then shift the conversation toward who will handle his duties until the company hires a replacement and whom employees should contact if they have questions.
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