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It’s usually easy to respond to requests for references or to verify employment from companies that former employees are applying to. But sometimes it’s not so simple. Here are some of the situations I’m dealing with:

• An ex-employee said he’d worked for us for seven years. It was just one. 

• A company asked for verification of employment for someone who worked for us from 2007 to 2009, but our electronic records only go back to 2010. Do I have to track down old paper records?

• Can I say if former employees were fired? I don’t want to get sued or break any laws.

• Can I prohibit managers from giving detailed references? Again, I don’t want the company to be sued.

I’m new to all this, and the company doesn’t have policies on it — it’s the Wild West of references here!

First, let’s talk about the difference between a reference and a background check. They are two different things, though some people use the terms interchangeably.

Background checks

Background checks are generally quite simple. In this case, the potential employer wants to verify that the candidate told the truth on their resume and in the interviews. These are questions like:

• Did John Doe work for your company from May 2017 to June 2021?
• What was his last title? (The question might be, “John listed his title as senior analytics manager. Is that correct?”)
• Is John Doe eligible for rehire?
• What was John Doe’s termination reason? Was it voluntary or involuntary?

Ask if the candidate signed a release. In your first example, where your former employee lied, you can just be honest: “No, that’s not correct. She worked for us for one year.” The same goes for job titles: “Actually, that was not his last title. It was senior analytics analyst.” 

In the second example, again, honesty is the best policy. “My electronic records go back to 2010, so I cannot verify or deny employment prior to that. I’m sorry!” You don’t need to offer to go back to storage to try to find older records. California doesn’t require private employers to provide employment verification.

You don’t need to feel obligated to answer the last two questions, but you can if you want to. In fact, you’re not obligated to answer any questions (unless your company is a public utility).

Reference checks

A reference check is where you talk to people about the job candidate. Reference checks generally have open-ended questions like, “Can you tell me a bit about Bob?” and “Would you rehire Bob? Why?”

These are the areas where companies are most skittish. They are concerned about lawsuits if they say anything negative. California law specifically allows companies to give negative references as long as they are done in “good faith.”

Even though the law protects these kinds of questions, there are limits. You can only talk about the employee’s performance and not any union activities or concerted action such as talking about salaries. And Califonia throws in free speech there as well — you can’t comment on constitutionally protected free speech.

What is good faith? 

Good faith is basically being honest and not malicious or mean. If you say, “We terminated Bob for stealing,” and Bob did, in fact, steal from you, then you are operating in good faith. You’ll need documentation for that as well. And while the standard isn’t the same as a criminal conviction, you need to have a good faith belief, supported by documentation that Bob stole from you. 

If, on the other hand, you say, “We terminated Bob for stealing,” and it was just a hunch, and you don’t have any documentation, a court might determine that this is not a good faith reference. (Remember, I am not a lawyer, and this is not legal advice!)

Basically, you can give references, negative or positive, as long as they are true and supported by facts. However, you can also ask for a signed release before you answer any of these questions.

Should you give references?

The stupid thing about references is that every hiring manager wants them, but companies don’t want to give them out. Many companies stick to the verification of employment only and do not give out salary information. Companies cannot consider previous salaries under California law. If someone asks you to verify the salary, the proper response is, “You know it’s illegal to consider that information in hiring. Please don’t ask.”

Companies can and often do prohibit managers from giving detailed references for fear of lawsuits. Recruiters will try to circumvent this, so it’s best to train managers to be honest and operate in good faith. It’s always fine to say no, although your former employees may not like it. Remember, you want them to be happy and prosperous, and they need references to get new jobs.  

Send questions to evilhrlady@gmail.com.

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