Hiring references: Loose lips lead to retaliation claim

Ever breathe a sigh of relief when certain employees depart? When you get a request for a reference from a potential employer regarding your ex-employee, you should carefully consider the information you share. That’s one of the lessons from a recent federal district court case alleging retaliation.

The defendant in this case, Creative Business Solutions, LLC (CBS) is a human resources consulting company that assists other companies with hiring and other employment decisions. An employee of one of CBS’s clients quit and sued her employer. She later sought work with another CBS client, the United Way, and received an offer of employment. United Way informed CBS of its decision to hire the employee. CBS then allegedly told United Way that there were “red flags” concerning the employee and that she would not be a “good fit.” After receiving this information from CBS, United Way withdrew its offer of employment. The employee then sued CBS for retaliation and other claims (Dinkens v. Creative Business Solutions LLC, D Kan, Sept. 2013).

Tips: This case is a reminder to think carefully about your policy on providing references for former employees, even to a trusted colleague at another company. Make sure that any information you provide is factual, and can be backed up if challenged. Also, make sure that the applicant has released you and your employer from liability for responding to a reference check. The risks include potential legal claims for defamation, retaliation, and invasion of privacy. Although the “loose lips” in this case came from a third-party HR consulting company, the same principles apply when you are providing job references. Check out our Legal Guides, “Giving Job References” (3440) and “Look for Red Flags in the Hiring Process” (994), and our Model Form, “Reference Checks” (923). Questions? Call your Vigilant staff representative to discuss.