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I've noticed a trend that most HR departments discourage or even have policies against giving references for former employees that go beyond these basic questions:

  • Confirm Employment
  • Verify dates and job title
  • Are they eligible for rehire?

The explanation I am always given is that if the reference I give is positive the new company could sue because I oversold the employee, and if I give a negative reference the former employee could sue because I somehow defamed them.

Talking to other managers, this position seems to be pretty standard. However, I feel strongly that the risks are minimal and not giving a reference for a former employee actually has more potential for harm because that person is an ambassador who, outside of your control, will spread the word about your workplace to other people who are likely in the pool of candidates you will want to recruit one day. For me, it is vitally important that employees leave the company with as positive impression of the place as possible.

So the question is this, am I wrong about this? Has there been a lot of litigation in the past that I'm not aware of either from former employees or new employers related to references being given? Also, are there other reasons that giving references is verboten by many HR departments?

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    +1 for asking for specific evidence. Since I don't have evidence one way or the other, I'll just comment. I would say that it's just bad for your reputation as an individual to provide references for employees who you honestly don't think did a good job - regardless if the reference is positive or negative - though you don't have to say why you declined to give a reference. Endorsing quality, former employees who you truly believe in has no downside in my view. – jefflunt Apr 11 '12 at 0:31
  • My understanding has always been that this policy was in place to protect the company/manager from a libel suit (for instance, if he burst out laughing when asked about the work ethic of a prior employee). But this could be an urban legend. – Scott C Wilson Apr 11 '12 at 15:30
  • @ScottWilson My dad (who has been a technical manager for a few smaller Silicon Valley companies) told the exact same thing about a decade ago, so if it's an urban legend it's an old one. – Tacroy Apr 18 '12 at 16:40
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    I don't know what kind of legal protection for the company this provides but I have had managers request that I give their personal phone number and then they ask me to make it clear that this is a personal reference and they re-iterate that when talking to the person checking references that they are not acting on behalf of the company but are instead giving their own personal reference. – Dunk May 17 '12 at 20:53
  • It may interest readers to know that in the academic world, common practice is the opposite: letters of reference contain all sorts of details and opinions about the former employee or student. I've asked a question on Academia.SE to try to understand why there is such a difference. – Nate Eldredge Aug 21 '14 at 2:24
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In the United States there has been a lot of litigation and regulation concerning the giving of references.

This article from the American Bar Association lists several of the mines you could step on:

  • Blacklisting
  • Defamation
  • intentional interference with a prospective employment contract.
  • invasion of privacy
  • intentional infliction of emotional distress
  • negligent misrepresentation.

This Findlaw article cites several specific cases in this area.

  • 2
    Note also that all of these issues pertain to the employee, not the prospective employer. You can't be sued (reasonably or successfully) by an employer simply by providing a positive reference for someone who turned out to be a bad bet for them. – Adam Robinson Jul 27 '12 at 12:49
  • I immediately ran into a problem in the first article, that it defined defamation as involving "employee must show ... harmful statements that you knew weren't true", then cautions against "a statement that you "didn't know was true"". What's the mens rea? Where's the burden of proof? It also doesn't seem to list the offences/torts you list, so I wonder if it's still the same article. – Steve Jessop Aug 21 '14 at 8:10
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So the question is this, am I wrong about this? Has there been a lot of litigation in the past that I'm not aware of either from former employees or new employers related to references being given? Also, are there other reasons that giving references is verboten by many HR departments?

Yes, here's why: If HR is contacted, then the HR response is an official response of the company, not some individual's honest opinion. So it must be nothing but factual things about the employee (this is why the company is libel to be sued by the employee).

Also I'd to add that: Anyone who gives an HR reference is off his rocker! What does HR know about him/her? If someone told me to contact his former firm's HR as opposed to a boss or coworker that would be a HUGE red flag to not hire that individual.

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    Not sure, but I think you might have misunderstood me. I meant that HR may have a policy against managers giving references for their former employees, not that HR is the one prohibited from giving a reference. – JohnFx Apr 11 '12 at 13:03

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