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What Did I Say?

Be a responsible reference.

Your problem employee has finally left. But shortly after his departure, you receive a call for a reference. Can you give an honest assessment?

It's dicey. Negative information you give could be fodder for a defamation suit. But all employers have an obligation to check the backgrounds of potential hires.

The good news: Most states provide a degree of protection to employers who provide references-it's called "qualified immunity." A former employer isn't liable, even for making mistaken statements, so long as the employer was not malicious. But this does not protect an employer from claims of discrimination or illegal retaliation.

Because of these risks, many attorneys advise business owners not to give references beyond confirming job titles and dates of employment. If you decide to give fuller references, follow these guidelines:

  • Keep it short and accurate.
  • Keep a record of what you disclose about the candidate.
  • Discuss general strengths and weaknesses of the employee.
  • Do not disclose information from the employment file that you treated as confidential when the employee worked for you.
  • Send all reference inquiries to one person who can answer questions in a manner consistent with these guidelines.
  • Ask your attorney if your state is one of those providing qualified immunity for employers giving references.
Jane Easter Bahls is a writer in Rock Island, Illinois, specializing in business and legal topics.

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This article was originally published in the December 2005 print edition of Entrepreneur with the headline: What Did I Say?.

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