Providing employment references

Tuesday, May 24, 2005 at 10:00pm

Is silence golden, or does the truth set you free? This week we address that common dilemma for those of you who must deal with employment references.

Let's say you receive a reference call on an ex-employee who was trouble from day one. When he wasn't telling dirty jokes, he was having temper tantrums. You'll never forget the day the seething hulk stomped around the plant vowing to kill his supervisor. You'll also never forget your feeling of relief when he announced he was quitting to move out of state. The prospective employer seems impressed with his work history. So what are your choices? Do you:

a) Give him a glowing reference? He'll be less likely to move back if he gets the job out of state.

b) Just verify the dates of his employment? Explain that you have a policy not to give out any other information. You can't chance him deciding to sue for defamation of character.

c) Warn the prospective employer about his violent tendencies? You can't chance any future employer making trouble for your company if the problem employee is hired and later goes on a rampage.

In today's world of increasing employment litigation, the best answer is b). In fact, many companies have a policy that says exactly what we've suggested here: Provide prospective employers with name, rank and serial number, and nothing else. Defamation cases do grow out of "bad references." In Tennessee, there's a privilege protecting most communications of that nature. But even though you may win the case, why run the risk of being sued?

You might wonder whether you have an obligation to warn a prospective employer about a violent employee. Maybe, but not under the circumstances we've described here. In our hypothetical, you thought the employee was just blowing off steam. In other words, he was exaggerating like everyone does sometimes: "If he does that again, I'm gonna kill him." "She's so worthless, she should be shot." You apparently thought that was the case here, because you didn't fire him for making a threat. You didn't even discipline him.

On the other hand, if you had fired him for making a threat or engaging in actual workplace violence, you might very well need to tell a prospective employer that. Stick to the known facts, and don't engage in speculation or pass along hearsay ("I always heard he kept an automatic weapon in his truck").

In the end, it's all about balancing the risks. But before deciding whether to go beyond "name, rank and serial number" when giving a reference, you should probably seek legal advice about your obligations under the circumstances and the potential pitfalls of disclosure.

A hybrid perk

Here's a great fringe benefit: $5,000 toward a new car! But it's not just any car. Hyperion, a California-based software company, is offering employees $5,000 toward the purchase of any car that gets 45 miles to the gallon or better.

Hyperion launched the program to combat global warming and improve air quality and as a tool to retain employees. Under the program, entitled "Drive Clean to Drive Change," several cars qualify, including gas-electric hybrids like the Toyota Prius and the Honda Insight, which are both rated at better than 45 miles per gallon by the U.S. Environmental Protection Agency. Electric cars, which don't consume any fossil fuels, would qualify, as would some of the late-model cleaner diesel cars.

Employees who have worked at Hyperion for at least one year qualify. The company will fund up to 200 employees a year, on a first-come, first-served basis, and has socked away $1 million to fund the program.

Hyperion CEO Godfrey Sullivan believes that companies and individuals have the power to make a difference, saying, "It is our aim at Hyperion to get people thinking about change, about making a difference."

There are other companies that offer smaller incentives to encourage workers to save fuel, but "nothing to the extent of $5,000 to buy a hybrid car," says Linda Platts, researcher at the Property and Environmental Research Center in Bozeman, Mont. Hyperion also launched the Companies for Clean Air Consortium to help other companies create similar programs. For more information, visit www.hyperion.com/driveclean/.

Kara Shea represents businesses in the area of labor and employment law in Miller & Martin's Nashville office and is an editor of M. Lee Smith Publishers' monthly newsletter Tennessee Employment Law Letter. More on human resources can be found at HRhero.com.

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