References: keep them fair and honest: what should you say or not say when a business calls asking about former employees?

You rely upon employment references to make wise hiring choices. Without them, it s difficult to assess whether or not to hire an applicant.

When other companies' representatives call for references on your former employees, nothing obligates you to share a thing; however, many employers choose to offer information: good, bad, or, sometimes, downright ugly. By sharing information with prospective employers, they help strengthen the community by keeping hardworking people employed. They also can help other companies avoid wasting resources on employees who likely won't work out with their firms.

In the past, employers could be held liable for what they say about former employees, especially in sticky situations in which the company and employee perspectives differ. These days, in Alaska, that's not the case. Since it was passed in the early 1990s, Alaska Statute 09.65.160, "Immunity for Good Faith Disclosures of Job Performance," protects employers when the employer shares job performance information in good faith.

"It was intended to provide a level of assurance that (employers) could give some information without being sued," said Tom Owens, founder of Alaska HR Consulting in Anchorage. "... there's still a healthy degree of caution for employers," he added.

The exceptions to the protection include "recklessly, knowingly, or with a malicious purpose disclosed false or deliberately misleading information or disclosed information in violation of a civil right of the employee or former employee that is protected (under the law, such as age, gender, physical ability, etc.)."

By planning ahead, you can help avoid legal problems when giving references on past employees and also help employers find the right fit for their job opening.

Know with whom you speak. You need to get the name of the company, the physical address, phone number, and the name of the contact person. "It's not uncommon for employees to pose as people looking for references to find out what you're saying about them," Owens warns.

Nothing but the truth represents the best policy. Don't exaggerate, make vague statements, or say anything you can't back up with documentation.

Barb Stallone, a partner with The Human Resource Umbrella in Anchorage, gave an example.

"Don't say, 'he was always late,'" she said. "Don't provide information where you don't have factual documentation to back it up."

Saying that someone is always late represents a generalization. Instead, if you're asked about the person's punctuality, look it up and reply with a fact, such as, "Our records indicate Mr. Smith was late 10 times during his two years of employment."

If you kept no tardy records, do not guess or give an estimate.

"Be very careful about subjective statements not backed up by facts," Stallone warned.

Don't get even with former employees by offering negative information for which you've not been asked, or presenting a one-sided look at their employment faux pas. Simply answer the questions asked of you.

"Be careful if there was any allegations made by the person regarding discrimination or harassment before they left," said Jill Dean, senior partner with KMD Services & Consulting, which provides employment law advice, among other services. "Be very careful about revealing that, partially because it's hard to see how that's job related."

You should also avoid vengeance because you never know where a former employee may go. The employee of yesterday may be the competition of tomorrow. If at all possible, why not be friendly colleagues in the same industry instead of bitter enemies?

Ask for clarification if you're asked open-ended questions such as, "Tell me about Mary Jones" or "What is it like to have Jane Doe working for you?"

Recruiters and hiring agents ask these kinds of questions hoping that you'll spill something personal on these applicants.

Simply reply, "What do you want to know specifically about her job performance?" You are not required to answer all-or any-of their questions. And it's perfectly fine to answer a question with a question.

Don't respond to protected-status questions. These could re late to family, gender, health, physical and disabilities and can be couched in appropriate-sounding verbiage. For example, "Did Sue take a lot of sick days?" is problematic because you could reveal information about a disability or health issue, both of which are off-limits topics.

Here is another example: "We're a family friendly company and maintaining that image is important for our product line's success. Was Jack a good, family man?"

The potential employer should not place you in a position of judging Jack's personal life because it has no bearing on his skills and performance at work. The future employer must perform background and character checks, not you. Although it's great to be helpful, it's the burden of the potential employer to prove that your former employee is okay.

When you're asked "wrong" questions, simply say, "We answer only job-related questions. Please give me your next question."

Let paper be your protector. For the ultimate in safety, stick with the written word.

"It may be somewhat safer because it leaves a good evidence trail of what you've said," Dean said. She suggested that verbal references can be documented as well.

Stallone recommends documentation such as a signed release obtained at each employee's exit interview to free you from liability for sharing information because "we live in a litigious world," she said.

Keep the release in his personnel file.

If giving references rattles you, respond only to written requests. That way you will have plenty of time to think about your answers and you won't be swayed by emotions as easily.

You could also use a pre-made form to uniformly answer all requests. For example, a very safe policy could be to offer only confirmation of the former employee's name, dates of employment, title, and job duties, all pretty much indisputable facts and easy to locate in a personnel file.

Riskier information would include the level of job performance (as backed up by employee reviews you have on file), awards and recognition, additional training received while at your company and cause of termination (voluntary or involuntary; don't go into details).

Be consistent in how your company gives references. Helping out a pal equals a bad idea.

"You get in trouble when (references) are not given consistently and you go to bat for people you like," Owens said.

By writing a formal policy, you can prove in court that the references you give are the same across the board.

The exception to this principle is if by not revealing some information, you could be embroiled in a negligent referral case. For example, if you terminated someone's employment for violence in the workplace, it is important to share that with companies calling for references. In these cases, Owens advises the former employer to contact an attorney for the utmost security in knowing how much to say. Or, you could weave into your policy a disclaimer regarding termination because of a violation of company policy and make sure that a prohibition on certain types of criminal activity (embezzlement, violence at work, etc.) is included in company policy.

Keep comments on criminal activity brief. If the prospective employer wants more information, then a criminal records check would provide it.

Appoint one person to give references if your company's size warrants delegating this duty. Typically the person in charge of the personnel files gives references, and not the employees' direct supervisors. For one thing, the keeper of the files can respond to requests more quickly. This person also may have less personal attachment to the former employee so that the response will be more objective and fact-based. It's also easier to make sure that references are accurately and consistently documented if only one person answers reference requests.

"Expecting all the supervisors to be trained in giving references is asking a lot," Dean said.

Giving references for former employees demonstrates professional courtesy. Dean believes that too often, fear of liability holds employers back from sharing information.

"They are needlessly afraid of it, especially in Alaska where we have immunity statues."

She further believes that not sharing information hurts business in the state.

"It allows bad employees to go from one employer to another and another," she said. "That's wrong. I truly believe most employers are over-worried about this issue. They should think about the information they would like to receive when they do job reference checks."

Giving references is not as tricky as one would think. By documenting, sharing only facts, and answering only job-related questions, you're sure to give helpful and fair information.

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