What you can and Cannot say as a reference?

Being asked to provide a reference for someone, whether a former employee, coworker, or acquaintance, is a common occurrence. However, knowing what you can and cannot legally and ethically say as a reference is crucial. There are some guidelines to follow to ensure you are providing an appropriate reference without exposing yourself to legal liability.

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What You Can Say as a Reference

Here are some things that you can legally and ethically include in a reference:

Basic factual information about the person’s employment history – dates they worked for you, their job title and basic responsibilities.
General assessments of the person’s skills, abilities, work ethic, attitude, contributions etc. as long as they are truthful. Saying someone is hardworking, creative, a great team player, or excels at building client relationships is usually fine.
Answers to direct questions about the person’s strengths and weaknesses, as long as you are being honest and sticks to facts rather than exaggerations or assumptions.

Some examples of what a reference could say:

“John was employed here from May 2015 to December 2018 as a sales associate. His responsibilities included assisting customers, processing transactions, and maintaining store displays.”
“Jane was always reliable and punctual throughout her time here. She rarely missed a scheduled shift.”

“Steve picked up new skills very quickly. He was always willing to learn new technologies and processes to improve his work.”

What You Should Avoid or Cannot Say as a Reference

There are also some things that could open you up to legal issues and should be avoided when giving a reference:

Do not disclose protected class information – race, religion, age, disabilities, marital status etc. Make sure not to imply anything based on these protected characteristics either.

Avoid giving opinions, subjective assessments or exaggerations. Stick to facts you can definitively back up.
Do not disclose confidential information about the person or your organization.
Never make false claims or lie about the person’s background, skills or history.

Refrain from giving negative opinions about the person’s personality or disparaging their character.

Some examples of what you should not say:

“I always thought Jane was a bit odd. She kept to herself.”

“John was frequently late for work. He just didn’t seem motivated.”
“Steve is way too outspoken about his political views. He won’t be a good fit for your company culture.”

Best Practices for Providing References

To ensure you are providing a reference in a way that is helpful for the candidate as well as legally protective for yourself, keep these best practices in mind:

Only agree to provide a reference if you are comfortable endorsing the person for the job/opportunity they are seeking.
Verify that the person actually worked for you if you receive a reference check call from an unknown party. Do not feel obligated to vouch for someone you do not know well.
Stick to facts and objective assessments – avoid subjective opinions whenever possible.

Have a policy in place about what information can be disclosed in a reference and ensure all managers follow it.
If policy does not allow detailed references, provide confirmation of employment details along with a statement saying it is against company policy to provide more in-depth references.
Maintain confidentiality and data privacy – only disclose information directly relevant for assessing the person’s qualifications.

Legal Liability

There are a few potential legal concerns to keep in mind when providing employee references:

Defamation – If false negative statements are made about a person’s reputation or character, they may be able to sue for defamation. Avoid exaggerations or subjective judgments.
Discrimination – Discrimination laws apply to references. Do not imply any evaluation is based on protected class status.

Negligent Referral – If a prior employee harms someone at their new job, negligent referral laws mean you could be liable for failure to disclose known issues or risks about them. However, you still should avoid subjective opinions.
Breach of Privacy – Revealing confidential medical or personnel information without permission may breach privacy laws.

While the legal risk is typically low, it reinforces the need to provide objective, factual references and avoid inappropriate subjective statements.

Refusing a Reference

In some cases, declining to provide a reference at all may be the best option. Reasons this may be appropriate include:

Company policy prohibits detailed references.
You do not know the person well enough to endorse their abilities.

You have only negative things to say about the person.
You are unsure about the authenticity of the inquiry.
The person was terminated for cause or left under negative circumstances.

The best way to refuse providing a reference is to politely decline and explain that company policy prevents you from providing any detailed references. You can confirm basic employment dates and title, but nothing further.

Key Considerations

Providing references requires balancing legal risks with the benefits of helping someone you know advance their career. Keep these key things in mind:

References should be factual, objective and honest – avoid exaggerations or subjective opinions.

Information provided should be directly relevant to assessing qualifications for the specific role.
Nothing should be disclosed that violates EEOC laws or an individual’s privacy rights.
If uncomfortable providing a reference, politely decline by citing company policy.

Have a consistent reference policy and ensure all managers follow it.

Reference Policies

Many companies have formal written policies about providing references for former employees. This helps mitigate legal risks and ensures consistency.

Typical guidelines in a reference policy may include:

Who is authorized to provide references (often only senior HR staff)
Requiring employee consent before giving references
Confirming identity of inquirer and legitimacy of request

Information that can or cannot be disclosed
Requiring references to be in writing, not verbal
Standard format for reference letters

Policies usually still allow managers to provide informal verbal references for former staff at their own discretion, but with caution about what can be discussed.

Sample Reference Policy

Here is an example of what a basic company reference policy could include:

[Company Name] will provide professional reference information about current or former employees when requested, subject to the following policy:

Only HR staff designated by the Director of HR may provide references on behalf of [Company Name].
Information provided will confirm basic facts of employment including positions held, employment dates, salary and responsibilities. Subjective evaluations or assessments will not be provided.

Disciplinary actions, reasons for separation or eligibility for rehire will not be disclosed without written approval from the former employee.
HR will verify the identity of any requester and their legitimate need for reference information before responding. Reference information will be provided in writing only.
Employees providing professional references outside of [Company Name] may not use company letterhead or email, nor speak on behalf of the company without authorization.

Offers of employment may not be conditioned on [Company Name] providing a reference. Reference refusal will be handled by citing this policy.

Having a formal policy such as this establishes clear guidelines on reference practices and can help protect both the company and employees providing references.

Conclusion

Providing professional references requires balancing helpfulness towards others with legal prudence and corporate policy. By focusing on objective facts, respecting privacy, and avoiding inappropriate subjective remarks, those giving references can effectively endorse someone they know without significant legal risk. Companies can further define practices through formal written policies. With care and consideration, professional references can be mutually beneficial for all involved.