Texas Business Minute

Employment Verification and Job References

By: Jikku John

Legal Counselor to Commissioner Joe Esparza

Oftentimes, employers find themselves in situations where another employer or business is calling to ask questions about a former employee. This could lead the employer to think: What am I allowed to say? How much information am I allowed to give? Could there be consequences for the information that I divulge? This article seeks to provide insight into what is proper, and equally improper, to disclose in situations involving employment verifications and job references.

Be Careful Over the Phone

Today, the vast majority of employment verification and job reference requests take place over the phone. Generally, it is not a good idea to give job reference information over the phone if someone “cold calls” you. The reason being, you do not know who is calling, and more importantly, why they are calling. For instance, the call could be coming from an employer who is thinking about hiring a former employee, but just as easily, the call could be coming from another source like a private investigator, stalker, or an identity thief.

Unless the employer has absolute certainty about the identity of who is calling and for what purpose, it is best not to divulge the information. Even still, a good general practice is to respond to calls about employees with something like, “I’m sorry, but we do not release information about current or former employees over the phone. However, we will be glad to furnish any information that your applicant authorizes us in writing to release to you.” A sample release can be found here: https://efte.twc.texas.gov/job_references.html#referencewaiver.

What About Consequences?

Although the employer may have strong feelings about a former employee who the employer feels may have wronged the company or who left the employer on bad terms, the employer must resist the temptation to badmouth the former employee. Employers can be held liable for defamation if they provide information “to injure a person’s character, fame, or reputation by false and malicious statements.” See: https://thelawdictionary.org/defamation. Additionally, employers will need to expend money and resources to defend against these claims. As such, the employer should resist the urge to use inflammatory language if information is requested about a former employee. See: https://efte.twc.texas.gov/job_references.html.

Best Practices?

To avoid potential liability that could be tied to employment verification requests and job references, first, as mentioned above, it is not advisable to release information over the phone. Second, the employer should only provide truthful, non-inflammatory information to avoid a defamation lawsuit. Accordingly, the employer should stick only to facts. Third, only supply what is requested. Unless there is a compelling need to do so, try not to volunteer additional things that are not connected to the information requested by a prospective new employer. Finally, maintain good documentation. If someone calls with an employment verification or job reference request, make note of the person making the request, the entity they are associated with, their phone number, and the purpose for which the call was made. Good recordkeeping, in addition to being a good business practice, can also go a long way when dealing with issues involving employment verifications and job references.

Conclusion

For questions about this issue, or any other employment-related matters, employers can call our employer hotline at: 1-800-832-9394, or email us at: [email protected].