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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to this
week's OK at Work with myself, Sarah
Sawyer, my colleague Russell Berger,
both attorneys with Offit Kurman.
And today we are talking about references
and referrals related to employees.
Sometimes employees may leave under
varying different circumstances.
Might terminate them, they
might leave voluntarily.
There might be some type
of transition plan out.
We've talked about a lot of those
different circumstances on OK at Work.
But often when they're leaving, they
either might ask for a reference,
ask for the company to say something
specific as it relates to them,
to their potential next employer.
Or you might get an inquiry from
a new employer or someone who is
looking to potentially hire someone
and need to respond to that.
So what are some things that companies
should be keeping in mind when they
either get those requests from the
employee or from other companies, or
recruiters or other sources, Russell?
Russell Berger: Yeah, I
think a couple things.
One, you want to have a centralized
location for responding to those requests.
You don't want every manager, every
supervisor in your organization
being authorized to respond.
Because you'll get a whole wide range of
different responses and different types of
responses and levels of candor and detail
that maybe you don't want to get into.
Having it all funneled to one
place is really important.
And secondly, having a policy in place
for how you're going to handle them.
A lot of employers, and this is frankly
where I come out too, have very basic
standard policies of neutral references.
That's the things like dates of
employment, job title, maybe salary
verification things of that nature
that are very objective, not subject
to any dispute between the former
employee and the company over,
well, you're good at this job.
You weren't good at this job.
Because, when you start getting into
the weeds of it, you have the issue
of a former employee could say,
well, you're committing defamation.
You're defaming them by talking
about their poor performance.
Or a new employer could say, well,
you committed fraud because you didn't
share this information or you misled me
as to this person's skill set because
you wanted them out of your business.
You could run into all
different types of problems.
For that reason, I prefer
centralized single person,
limited amount of information.
Sarah Sawyer: Yeah, it's hard sometimes
because there can be a desire, especially
if things have gone poorly with an
employee to want to say things and
prevent a future issue for someone
who might be hiring that employee.
And there's often a lot of emotions
involved based on that knowledge.
Sometimes there's also emotions
involved in the other direction where
you can get yourself in trouble in the
opposite direction, from perspective
of emphatically recommending someone
and then that not going well.
And that's a little bit less of a legal
risk around defamation or some of these
other issues to recommend someone,
but from a practical standpoint, that
can have its own issues as well as if
you're saying, Hey, this person was
amazing, and then it doesn't go well.
I think there's a good saying
sometimes that I've heard that's don't
thank me, but also don't blame me.
There's a good balance to be as
neutral as possible for other
just practical reasons as well.
Because people are people and you
don't always have all the facts.
You might think you have a good
handle on a recommendation that
you're making in one direction or
another, positive or negatively, but
not really have the full picture.
Russell Berger: And one other thing to
consider with this is oftentimes you see
this in severance agreements where one of
the negotiated terms might be a neutral
reference or might even be an agreed
upon reference letter, which at least
in that case, if you're getting into a
little bit more substance you're doing it
as part of kind of this back and forth.
It's a negotiated thing.
It's not a normal everyday process.
And you're doing it with review of
council, so you're making sure you're
saying something that obviously
the former employee is not gonna
be objecting to because they want
it as part of the settlement.
But you're able to carefully craft in
a way that isn't going to get you into
any trouble anywhere along the way.
Because ultimately, once the person's
out, you may wish them well and
sincerely mean that, but you don't
have a business interest in that
person one way or the other thereafter.
Trying to keep that in mind as you
go through the process is important.
Sarah Sawyer: All great points.
Well, thanks Russell
and see you next time.
Russell Berger: Thanks, Sarah.