The two primary pitfalls to avoid are (a) providing information to anyone not considered a “person with an interest” (California statute), and (b) providing positive information without disclosing significant negative information (California case law).
- A “person with an interest” is defined as someone who is in good faith considering hiring your employee, or is from a licensing agency. You should never give out information if you have reason to believe that the person is not who they say they are or if they are merely curious about an employee.
- Recent California case law has held employers liable for providing positive feedback to a future employer, while withholding significant negative information. The most extreme example was that of a school that provided positive reviews of a vice principal to a prospective employer, but failed to disclose that the vice principal had molested a child. Other examples that would clearly apply include acts of violence, stealing, and dishonesty. If you have an employee or former employee with a record of one or more negative acts, the best practice is to discuss with Employee & Labor Relations before communicating anything to the reference checker.
While violence, physical abuse, and stealing are clear examples of significant negative acts, managers and supervisors will need to use their judgment as to whether lesser acts meet this test. For example, you are not obligated to disclose a singular incident in which an employee was dishonest in explaining why he was 10 minutes late for work one day; but you would need to disclose that a person was dishonest in falsifying records that resulted in a family friend receiving preferential treatment over other clients.
Since this is an area that is likely to expose you to the most liability, we advise you to contact Employee & Labor Relations prior to providing reference information anytime it involves an employee or former employee who was terminated for cause, resigned in lieu of dismissal, or was subjected to the equivalent of a suspension as a result of wrongful conduct. Employee & Labor Relations can assist you in providing your response based on that employee’s specific circumstances.