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Can you tell the truth about a (bad) former employee?

On Behalf of | Dec 9, 2021 | Employment Law For Employers |

If you’re in business long enough, you’re eventually going to encounter all kinds of employees – some good, some bad. 

A lot of employers are very nervous about giving their honest assessment of a former employee, however, when they’re called for a reference. They’re afraid that if they say something negative that they might get sued. 

How honest can you be when you’re asked for a reference?

In California, you can actually be pretty honest and direct about your feelings. California recognizes “negligent hiring” as a valid kind of personal injury claim, so employers need to be careful about the people they hire. Clean background checks and good references are essential in a lot of industries. 

Because of this, California has created a certain amount of statutory immunity for employers so that they’re encouraged to speak freely when they’re called for a reference. Here are some of the rules you should know: 

  • You cannot make unsolicited statements. In other words, you can’t call around to other business owners in your industry and “blackball” your former employee just because you’re angry that they left your company.
  • You can directly tell the potential employer whether you would rehire your former employee, so long as you do so without malice.
  • You can also tell a potential employer if your decision not to rehire was based on sexual harassment by the former employee.
  • Your words are not protected if you tell the potential employer that you wouldn’t rehire the former employee because of their protected activities (like unionization).
  • You cannot violate any contractual agreements that limit your speech. For example, if your employee left on bad terms but you settled your differences out of court and signed a non-disclosure agreement, that would be privileged information. 

It can be tough to know where you stand in the ever-changing landscape of employment law. Experienced guidance can make sure you stay on the right side of the line when giving references.