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Bad Reference?

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Zephyr

Senior Member
What is the name of your state? WI

We recently had an employee termination her employment with us.

On a friday, myself- a member of management, and the owner of the company had a discussion with this employee about her poor performance over the last year (there had also been many smaller one on one discussions regarding this). We told her that we would like to keep her, but that the level of work she had been providing was not equivalent to the level of pay she had been receiving. We asked that she take a temporary pay cut, until she could prove she was capable and inclined to do the work we needed her to do.

On sunday night she left a message on the voicemail stating that she could no longer work for us. She then filed for unemployment. We related the situation to the unemployment people. They denied her claim. this was all about a month ago.

Yesterday we received a phone call for a reference for this employee. We really, in good conscience, can not give her a positive reference. Does anyone have info on what legally we can say? We of course have no intention of bashing her in any way, but she was applying for a position at the same level she had here, which she could obviously not handle the responsibilities of.

Any info or links would be greatly appreciated.
 


racer72

Senior Member
Tell the truth. I have found a middle ground that works for situations such as this. "As an employee, (he/she) (did not/could not) meet the high standards we has set for our employees. We must give a neutral reference for this person, we would hope that she learned from her dismissal from our company and could become a valued employee for someone else in the future. This person will not be considered for employement with our company in the future."
 

cbg

I'm a Northern Girl
Based on the questions we get here, it would appear that references are one of the aspects of employment law that are the most misunderstood.

Contrary to what you may have heard, it is NOT illegal to give a bad reference. It is only illegal to give a misleading or untrue reference.

You are at liberty to give whatever information you choose to providing that it is true, or represents your honest and supportable opinion. You are not required by law to provide any information at all.

Some employers are so fearful of being sued for bad references (and I'll address that in a minute) that they have taken a position of only offering dates of employment, job title, salary and possibly rehire status. In fact, so many employers have taken this position that many, many employees mistakenly believe that the law requires employers to limit themselves to this information. IT DOES NOT. No matter what anyone tells you, no Federal law and no law in any state limits reference information in this way. (If she tries to tell you it does, I suggest you ask her for the statute number that says so. You'll find she can't provide it - that's because it doesn't exist.)

With regards to lawsuits, on another board that is primarily for HR professionals I have offered a standing challenge for anyone to provide me with the link to a case, any case, regardless of state, circuit or Federal jurisdiction, in which any employer was successfully sued for providing a truthful but negative reference. I don't remember when I first issued that challenge but it was no less than three years ago and probably not over five. It has stood unanswered all this time. The closest anyone has come to answering the challenge came from a friend of mine, who was in a seminar at the national conference wherein the presenter asked if anyone present had had a lawsuit filed against them because of a reference. ONE person out of about 200 raised their hand. (Remember, this is not for a successful lawsuit or even a lawsuit that actually made it to court - this is just for a FILING.) The presenter said that she had been asking that question for years and this was the FIRST time anyone had ever responded.

If out of several years and several hundred HR people, only one has even had such a suit FILED, let along made it to court, let alone lost, then obviously the fear of said lawsuits is much overstated.

As long as the information you provide is truthful, you should have no problems.
 
What have you googled? i believe in nys you are only allowed to say when she worked there, for how long, her position in the company...type of thing. So just say it with a smile on your face? And if she wants the type of ref. to talk about her work performance, she would be wise to pick another employer, or a specific manager who is willing to weave around and state her good points. :).
 

Zephyr

Senior Member
Thank you so much for the good advice. I couldn't beleive she even listed us as a reference after everything, we were just caught off guard yesterday.
 

cbg

I'm a Northern Girl
I believe in nys you are only allowed to say when she worked there, for how long, her position in the company...type of thing.

Neveragain77, read my post above yours. NO state has such a limitation on references, despite a persistant (and totally erroneous) belief among the general public that such laws exist.
 
cbg said:
I believe in nys you are only allowed to say when she worked there, for how long, her position in the company...type of thing.

Neveragain77, read my post above yours. NO state has such a limitation on references, despite a persistant (and totally erroneous) belief among the general public that such laws exist.
wow, that is interesting. :D. i have heard that misconception so many times. thanks. *bats eyelashes*, i know you gave me your answer to my initial question above, but i rephrased and asked some more specific questions, so if you have any advice/opinion on any of those, that would be great. you helped me w/ this before, well, the initial part of that, remember? i was the dunce who got it on w/ her boss? oh man, i hope i win, i know i'm right, but i also know fairness doesn't always count. thanks, me.
 

CO19

Member
WANNACRY said:
What is the name of your state? WI

We really, in good conscience, can not give her a positive reference. Does anyone have info on what legally we can say? We of course have no intention of bashing her in any way, but she was applying for a position at the same level she had here, which she could obviously not handle the responsibilities of.
Any info or links would be greatly appreciated.

You have already received some good opinions. The only thing I would add is that you get a copy of the written release from the applicant (via tentative employer to CYA) and read the wording carefully. I would try to limit your responses to written communication, if possible, and only answer specifically what is asked.... Joining some HR Associations is also a good way for HR professionals to network and discuss matters such as this... Hope this helps!
 

BelizeBreeze

Senior Member
CO19 said:
Below is an interesting link , per your request....

http://gbr.pepperdine.edu/992/referral.html
And what does a California news article citing a 1987 case have to do with a situation in WISCONSIN? :rolleyes:

Cry, an employer has a conditional privilege under Wisconsin law, Wis. Stat. §895.487, to make statements during a reference check. The Court held that in order to prove a claim of defamation, the employee only needs to show express malice, not actual malice.

Actual malice requires the knowledge of false information or reckless
disregard of the truth. However, express malice only requires ill-will, bad intent, envy, spite.

The Wisconsin Court of Appeals, in Gibson v. Overnite Transportation Company (Wis. App. 09/23/2003), analyzing Wis. Stat. §895.487(2), said the law provides three ways in which the presumption of good faith may be rebutted:
1. “The employer knowingly provided false information in the reference;” 2. “The employer made the reference maliciously;” or
3. “The employer made the reference in violation of another Wisconsin Statue"

In this case, supervisor clearly overstepped the line with his personal opinions about Gibson’s work performance, work ethic and attitude. The particular statements which cost Overnite the decision on appeal were:

“Gibson was way below average.”
“He needed to improve his work ethic and attitude.”
“He was late most of [the] time and he missed anywhere from 2-3 days a week.”
“He had a real problem with authority.”
“He has a very negative attitude.”
“He’s everybody[’]s best friend – so he thinks.”
“He did not get along with some people, but most saw through him.”
“His paperwork was fair. It needed help like you wouldn’t believe.”

Now you have the RELEVANT basis for which to make a decision based on YOUR STATE'S and case law.
 

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