it’s not illegal to give a bad job reference

A reader writes:

My wife and I go back and forth about this one all the time.

A former secretary of hers was moving and searching for a new job in her new city. The problem was that this person wasn’t the most reliable employee. She was always late, took days off without calling and had some other quirks but when she was there she did good work.

My question is if someone calls you about a former employee what can you say and what can’t you say?

I have always believed that you have to tell the truth because if you give a shining recommendation to a crappy employee it will come back to you.

A lot of others tell me that it is illegal to say anything bad about a former employees.  Is it really illegal?

No, it is not illegal, as long as what you’re saying is factually accurate.

What has happened is that some companies, in an effort to avoid the headache of nuisance lawsuits, have implemented policies that they’ll only confirm dates of employment and title, rather than commenting on performance. These policies are pushed by lawyers who believe in playing it safe; after all, even if you can easily win the lawsuit, it’s still a huge pain to have to deal with. So, the thinking goes, why even invite that hassle? It’s easier to just refuse to comment.

As a result, this urban legend has sprung up, where tons of people seem to believe that it’s actually illegal to give a bad reference. But corporate policies are not the law. (They’re often not even followed by the companies that have them.) It’s perfectly legal to give a bad reference, as long as it’s honest.

I have always given honest references, because I want others to provide me with the same courtesy. However, when I can’t give an employee a good reference, I’ll warn her in advance, so that she knows not to offer up my name. (Some employers will still call anyway; really good reference-checkers won’t just stick to the list of names the employee provides.)

In any case, you win the bet with your wife.

{ 71 comments… read them below }

  1. Anonymous*

    about the value of a reference… is it really there? when you married did you check all the references? or recently there was a case of a topnotch colonel who was accused of stalking and kiliing women in Toronto… I wonder one month before he was caught, what would be his references, probably stellar… and what is the real value of those? and what would be a reference after?

  2. Ask a Manager*

    Well, when you get married, you (hopefully) know the person a whole lot better than you know someone who you interviewed for a job. And actually, in cultures with arranged marriages where you often don't know the person well, people do rely heavily on "references" from people who know the person and his/her reputation.

    In any case, of course references aren't perfect. Some of the time they don't carry much value at all. But you don't know before you make those reference calls if this is going to be a time where they have value or a time when they don't. I've made reference calls when I'm torn between two candidates, and the glowing references of one candidate have helped me make the choice. And I've made reference calls where I've become convinced the person would be wrong for the job. 80% of the time, references don't say anything that pushes me one way or the other — but that 20% of the time when they do is really valuable.

  3. Anonymous*

    Also take into consideration the ability to even get in touch with the reference. Ive had candidates that have supplied me with a list of references who, when I tried to contact them I couldnt get a hold of any of them and left messages that were never returned. How good can the candidate be if you cant even get in touch with the references that the candidate supplied to you? Maybe great, but I wont know since I moved on to other candidates who interviewed equally well and who I could track references down for.

  4. Anonymous*

    Two things:

    1. I have heard there are "code" words references use to describe a former employee who is interviewing with another company. I have been told that if the reference says "He's a nice person" then it really means "Watch out for this person." What say you AAM? Is this old school or is it still true?

    2. In regards to Anon 2:58, are the references a complete reflection on the candidate? If a reference is a difficult reach, why should that reflect poorly on the candidate? Maybe that person can say the best of things about the candidate. If references can't be reached, then shouldn't the candidate be told? Things happen in life, and things happen in the lives of the references. It just doesn't sound right that the person gets bypassed.

  5. Anonymous*

    I was sued once for saying "factual" things. If we had gone to trial, I would have been able to prove my case.

    HOWEVER, I was sued as a civilian, and if I didn't get a lawyer to take pity on me, it would have cost me $2000 just for the initial consultation (as it was, most lawyers flatly refused to even take me as a client without a $20,000+ retainer).

    Those nuisance lawsuits are commonly referred to as SLAPP (A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition). They can easily cost your life savings and there are no protections in this country against someone suing you and it costing you everything to defend yourself.

    So, no, giving a bad reference is not illegal, at all. But it could cost you tens of thousands of dollars to defend against a "defamation" lawsuit. All it takes is someone with a lawyer in the family to make your life the worst hell on earth.

    1. Justice_4_all*

      People who file nuisance & SLAPP lawsuits & lose, should be forced to cover the legal expenses (w/interest) of their victims. We should demand &/or force government to enact legislation to that effect.

  6. Alison Green*

    Anonymous at 8:36 —

    If there are code words like that, I've never heard about them. There are more subtle codes though — meaning that a reference can hint around and damn a candidate with faint praise. But actually code words? Not to my knowledge.

    On the question of what it means about the candidate if her references are unreachable, I do think it says something. A truly together candidate will have touched base with all her references ahead of my call, so she'll know if they're out of town or otherwise unreachable, and have made other arrangements to put me in touch with someone who can speak about her work.

    If I can't reach a reference, I just tell the candidate I'm having trouble getting the person and ask her to facilitate the contact. That usually gets fast results.

  7. Amy*

    I think there is another component to the way companies like to just verify dates and titles. Many times the request comes directly to HR, and the HR person probably never actually supervised the candidate and therefore can't comment on performance they have not experienced.

    I'll never forget the time I called a reference, asked how he knew the candidate and he proudly exclaimed "I'm her fiance!" Shortest reference conversation ever.

  8. Anonymous*

    hi, I am the first anonymous, and yes I take this institute of references with a big grin of salt. I am not a manager, just a professional and yes I have tons of good references. Sometimes I am asked about references… like I have a project that lasted 5 years. as a consultant I was extended numerous times, 3 months, another 6 and so on. When I am asked about reference I can only smile – why??? the fact of extensions speaks volumes. Or there was a client for whom I worked and then after interruption invited again for another year… and if I am asked for this reference I just so surprised: I was hired back, what better reference could you have? But any interview is a two way street, so the client obsessed with references immediately looses so much on my score sheet. Or another example, my son was on internship program in Switzerland for a year and he had to obtain a letter from supervisor. This supervisor was very strict and he didn't give him the best marks. Other supervisors for my son's peers gave exellent marks for sloppy jobs (my son managed to rectify this explaining his supervisor his mistake – what a tough task!, and what an experience for him). So… if you rely on reference you must take in account a personality of a referee, and how will you find it out in a matter of 10 minutes phone chat? make you better ask for a reference for this referee?
    To understand if the person you are hiring is good or bad you need five minutes conversation plus samples of previous work. not a reference.

    1. Anonymous*

      I 100% agree with you. “To understand if the person you are hiring is good or bad you need five minutes conversation plus samples of previous work. not a reference.” References are very subjective to say the least.

  9. Anonymous*

    I agree with 6/25, 1:50AM anonymous

    Another angle – our references inform us, if they receive a call. Therefore, the anticipation builds for a job offer. If it does not occur…ugh.

    One then wonders, did the other candidate have a more vocal cheer section? Moreover, were their references of more value (someone the hiring manager knows, more prestigious title)?

  10. Anonymous*

    who are you hiring, the referee or the candidate? for god's sake, speak to the candidate.

    if you see anything other than what it actually says in the sentence 'he's a nice person', then you need to see a psychiatrist.

  11. Anonymous*

    I wish I could find the internet article I once saw with a list of reportedly actual creatively negative references… the one that stood out for me was "any company would be extremely fortunate to get this employee to work for them…"

  12. Smithy*

    This and other very similar lists have been going round for years (either for report writing or references):-

    “Works well under constant supervision and cornered like a rat in a trap.”
    “Since my last report, this employee has reached rock bottom and has started to dig.”
    “His men would follow him anywhere, but only out of morbid curiosity.”
    “I would not allow this employee to breed.”
    “This employee is really not so much of a ‘has been’, but more of a definite ‘won’t be’.”
    “When she opens her mouth, it seems that it is only to change feet.”
    “He would be out of his depth in a puddle.”
    “This young woman has delusions of adequacy.”
    “Sets low personal objectives and then consistently fails to achieve them.”
    “This employee is depriving a village somewhere of an idiot.”
    “This employee should go far, and the sooner he starts, the better.”
    “Got a full 6 pack, but lacks the plastic thing to hold it all together.”
    “A gross ignoramus – 144 times worse than an ordinary ignoramus.”
    “He certainly takes a long time to make his pointless.”
    “He’s been working with glue too much.”
    “He would argue with a signpost.”
    “He has a knack for making strangers immediately.”
    “He brings a lot of joy whenever he leaves the room.”
    “When his IQ reaches 50, he should sell.”
    “If you see two people talking and one looks bored, he’s the other one.”
    “A photographic memory but with the lens cover glued on.”
    “A prime candidate for natural deselection.”
    “Donated his brain to science before he was done using it.”
    “Gates are down, the lights are flashing, but the train isn’t coming.”
    “Has two brains: One is lost and the other is out looking for it.”
    “If he were any more stupid, he’d have to be watered twice a week.”
    “If you gave him a penny for his thoughts, you’d get change.”
    “If you stand close enough to him, you can hear the oceans.”
    “Its hard to believe that he beat 1,000,000 other sperm to the egg.”
    “One neuron short of a synapse.”
    “Some drink from the fountain of knowledge, he only gargled.”
    “Takes him 2 hours to watch 60 minutes.”
    “The wheel is turning, but the hamster is dead.”

    1. Anonymous*

      I think these were supposed to be taken from officer fitness reports on military cadettes. I have seen an article about giving a truthful but apparently positive reference for a person you want to get rid of, which included the likes of “any company would be extremely fortunate to get this employee to work for them…” (i.e. the person is lazy and doesn’t do any work).

  13. Michael*

    Just to respond to the initial question and answer.

    No, it is definitely not illegal to give a bad reference. If you have the facts to back it up, and it stays factual, there should never be a problem – hence many of those HR policies around references. The other factor was the reverse, a company representative giving an opinion based positive reference which was far from the reality of how the employee performed.

    It is also not illegal to defame a former employee or company. This is a civil matter, and as such, yes a company can and (imo) should be sued for opinion based referrals that slander a candidates name. This is petty, and unbecoming of a professional. So, while not illegal, bad referals are highly dangerous, so be careful!

    Smitty, great list, thanks for posting!

    Oh, and dear reader, give your wife a 25% victory on this one – she deserves it and it could save you from food poisoning or worse! :-)

  14. Employee now Employer*

    I think giving a negative reference is just small minded and spiteful. I worked for a company where we were subject to serious bullying by the manager, when I spoke to a partner I was subjected to humiliating tasks and was not promoted. I left (and many others) and I would go crazy if I thought I was also stung with a bad reference. So I believe that it should be illegal to give a bad reference. It just leaves the door open for spiteful bullying employers to bully staff after they have left.

    1. Ask a Manager* Post author

      It already is illegal to give a bad reference that’s factually incorrect, which it sounds like was the case in your situation. So the law already does protect you.

  15. jacie*

    Hi!!! I am in quite a mess and need some advice / feedback. I resigned from a position I held for 2+ years because of a disability. This disability did put me out of work a few times during my employment. The last time I returned from disability (which was approved by Social Security Administration) my district manager told me that if I felt like I needed to take another disability I should just quit my job to make it easier on everyone. He was aware of why I was out of work – which I didn’t need to disclose to him- per the ADA. Now, after being out of work for almost a year my Drs, advocate at Social Security, and most importantly I am confident that I am ready to return to work full time. My problem is the horrible reference my former supervisor is giving me. How should I address this during interviews. I do have a copy of my letter of resignation. Should I bring that along? I just got passed by for a perfect job for me because of one bad reference!!!! Help!!!!

  16. Anonymous*

    This idea that “as long as its truthful” then you can give a bad reference is wrong. Whose ‘truth’ are we talking about here. Job performance is highly subjective, especially in an office type job. Were thier reports good or bad? Well its subjective to their boss.

    I work in a large company where managers come and go. A manager will think certain people on their team are lousy employees. Then the boss moves on and a new boss takes over. The new boss things those same poeple are great workers.

    Everyone is so afraid of giving a supposed bad employee a good reveiw because it will “come back to haunt them”. No it won’t. If the candidate is hired and does a lousy job, they’ll just get fired. They new company is not going to call back. They will have lost your number by then.

    To give a bad review is just petty and spiteful. Just be happy for the person that they got a job so they can feed their family. The importace of recommendations is ridiculous to the poine that quailified people never get a job, can’t get employment and have to get on food stamps. Who pays for that?? We all do in higher taxes Everyone deserves a second chance and while you might think that person is lousy, your opinion should not be the final one.

    1. Ask a Manager* Post author

      Legally, yes, you are allowed to give a bad job reference as long as it’s truthful. I see your point of view, but at the same time most employers are going to want to talk with a candidate’s former bosses before making an offer. It’s just business convention.

    2. Donna*

      I absolutely agree…for example…what we are going to do when it comes to the developing countries in which there is practicaly no law to protect the worker? I come from the Eastern European country in which I was forbidden to take vacation and threatened I am going to be fired if I do…and this is just a tip of the iceberg. So, a potential bad reference when I look for the job in EU, in which this thing are unlikely to happen, should prevent me to achive great results on my future job!? This is stupid… Did you know, for exapmle, that in my country most people work on black market? How will you prove you were employed?? Or, mobing example: that workers in some stores in less developed part of the country were forbidden to go to the bathroom and instructed to wear diapers?! Not to mention, going to a fashion photographer to make a CV picture, because if it’s not excellent…well… For some jobs this may pass…but for the others… What kind of”person gives a bad reference to the former employee?! So, you want him or her to day from hunger because you are the former employer and you have the power?!
      Unbelivable….just think about it…

      1. Ask a Manager* Post author

        I can’t speak to conventions in other countries, only the U.S. But of course, if you were hiring a babysitter for your kids, you’d want to check references, right?

    3. Not really*

      Good employees get good references. Bad employees get bad references. It’s that simple. Employers have families too and they (and thier employees) don’t want to hire some poor performing bum who will negatively impact the company and EVERYONE else’s well being.

  17. Anonymous*

    Any manager who gives a bad reference about a former employee is putting his/her firm at risk of receiving a defamation lawsuit or a retaliation lawsuit. If the former employee is over 40 or a minority, that makes it even worse for the employer. Attorneys have a field day with these lawsuits so any manager who is saying bad things about their former employee is not doing themselves or their company any good.

    Its best just to confirm dates of employment, title, and most recent salary. If HR knew a manager wasnt giving good references about a former employee, they would most likely order that manager to stop saying anything negative about that former employee, regardless of the former employee’s performance.

    1. Ask a Manager* Post author

      It’s not illegal to give a bad reference if what you’re saying is accurate. I hate this attitude that we should all be governed by the fear of lawsuits — it causes tons of problems, and it’s generally an overblown fear that’s been cultivated by lawyers whose job is to care only about minimizing risk but not about any of the other myriad factors that are usually in play.

  18. Sucker Employer*

    Have owned a business for 20 years and have been blessed with mostly good employees. Now I have one that is basically going to end my business and my life as I know it. I have the following advice for anyone starting or preparing to start a business:

    (1) Believe any rumors you hear about people you are hiring
    even if the rumors are good or bad.

    (2) Never hire the child of someone who owned or owns a
    small business. You are a college that costs not a dime.

    (3) Never keep an employee more that five years under any
    circumstance. After that, they had made themselves a
    partner. Whether you know it or not.

    (4) Construct your business where it is like a circus. It could
    be taken down and reconstructed (through bankruptcy) in
    A month.

    (5) When an employee gets a divorce or brings his or her personal
    life to work, fire them without hesitation.

    (6) Your employees are nothing more that machines. They are
    not your friends, they are not “like family to me” or any of
    that other horseshit you hear your fellow businessmen say.
    They want what you have. They want your life. They will
    take that life as soon as they have their ducks in a row.

    (7) Beware of the sociopaths. They will destroy you just because
    they are told to be on time for work or if they are asked to
    clean up their areas. They hate you. If you are a boss or a manager
    and you feel like there is continual mutiny against you and your
    company find an informant and at the bottom of the mess you
    will find a full blown sociopath.

    (8) End any benefits that you can. It creates a feeling of entitlement
    and deep resentment. I paid for employee health insurance
    100 per cent. I was told one at least 20 occasions that “our
    health insurance is shitty”. Well on 31 December of this year
    We won’t be having any. End of story.

    (9) Finally, never think you can turn someone loose in your
    organization because they are a “self-directed person”. There
    ain’t no such animal. They are unicorns….don’t exist. They
    just want to be able to finish out their customer list and steal
    enough to start their own business.

    My advice; life is short. Employees make life difficult and are generally not worth the pain and agony. I am going to do my damnedest to cash out and never have to sign another paycheck, or be asked for another raise or have to beg someone to be on time or to have to be audited by any state, local or federal agencies, or to have employees try to play me against my partner or to run a legal gauntlet every day I walk into my building.

    The American Dream isn’t just over it is dead and will never be back.

    To those of you who work our 80 -100 hour weeks so that you can take care of your employees and lastly yourselves and your families, I say just sell on E-bay and survive with some peace and dignity.

    To those of you staying in business (temporarily) I say good night and good luck.

    1. Ask a Manager* Post author

      Sounds like you’ve had a really bad experience (or experiences). But don’t extrapolate from that to assume everyone is like that. If nothing else, plenty of commenters here demonstrate that’s not the case.

      1. Sucker Employer*

        Got to laugh. Go ahead and believe. If you don ‘t think that small business is doomed go out and talk to some of them right now. I have several friends that are owners and they all and I mean all of them want to be out of them.

        The economy is not, and believe me you don’t have to have a crystal ball to know this, ever going to improve under the current administration and the regulations we are subjected to. If you work for someone today be prepared for March of this coming year. Everyone who owns a business knows that’s when we’re all going to have to cut jobs. Christmas this year is a final hurrah.

        In 1978 I heard it everywhere I went that Christmas; “I may as well buy it now because I’ll never be able to afford it anyway”. That’s the subtext to right now.

        I tell you this right now; the wolf ain’t coming someday, he’s at the door. So go out and spend that money my children. It’s only a few dollars every paycheck….ooops, what paycheck.

  19. Anonymous*

    People just dont care. No one wants to see you get ahead and they often say nobody helped me so why should i help you? Family friends former employers just shout NO they wont help you or give a reference. People give you out of service numbers or bad mouth you to ruin your chances for an apartment, job, volunteer, education all these training courses want references. Personally I don’t want people in my business, I don’t want people to know where I work or live or spend time because they get jealous or try to start trouble for me or show up and stalk me in my life activities. I couldn’t pay someone to be a reference can you believe that?

    1. Ask a Manager* Post author

      I’m sorry to say this, but that’s a very unusual experience to have, and if you can’t get someone to be a reference, it might be for a reason other than people not caring!

  20. Anonymous*

    I am on the other side of the stick and need some sound advice. I was “fired” 3 months ago for improper documentation – this was the reason on the termination letter. I was told that I put down a home visit on my mileage and the date on the computer did not match the date on the mileage sheet that I turned in- a human error! Mind you, I did several home visits that month but only put down 1 visit to save the company money. I have done this same job for 10+ years and for the last 5 1/2 years with the company that fired me. In 5 1/2 years, no one from this company has every stepped a foot in my door until the day I was fired when my supervisor showed up. I had over 350 hours of sick leave, 165 hours of annual leave, no oral or written discipline-EVER. I received yearly raises and awards.
    Yesterday, a former client of mine told me to call my old phone number and listen, so I did… and it says…. This is “her name” and I have replaced “my full name” and if you need to speak with someone in the office with “my full name again” call this number and ask to speak with “a particular department”. Just a few side notes…. The last 6 employees hired ALL attend the same church, ALL are the same race and when I was fired, in this office, there is only one race of employees. My office is in a RURAL area where everyone knows me and I feel among other things that my privacy as a former employee is being violated. In another office of my former employer there were two occurrences where employees have violated clients HIPPA privacy by disclosing their status to other clients… their punishment was 1 week with no pay.

  21. Anonymous*

    I have just joined a super company, in my previous company the female boss I had at one stage made my life a misery, so much so that I used to get myself all worked up going to work this happened for a whole year and I would end up crying a lot. She would suck up to the directors and make other people look bad all the time. The directors then promoted her (as you do) and moved her to another section, which made my job absolutely wonderful, I get on with most people and have made some really good friends from my previous companies that I am still in touch with. Anyway I have only been at my new company a short while and have heard from my new boss that this “lady” now wants to join the company I am in and not only that the same department, which is really small which means I will be working really closely with her. My boss has asked me to give some insight into her, what do I say without sounding like I am the one with the problem. She is really an evil witch but comes across to Males as the most wonderful person ???? please help! If she does join the company I will leave and I don’t want that to happen.

    1. Anonymous*

      You should be able to tell your employer that you are uncomfortable talking about her because you personally did not get along with her as your manager to the point your own work was affected.

      They should be able to draw their own conclusions from that statement.

  22. anon*

    Another line for a ‘bad’ reference is: “You’ll be lucky if you can get him to work for you.”

  23. RB*

    Need immediate help!
    Here is my situation:
    I am working for a company A for last 4-years. I my first year, I was assigned a task to help another team as the project was very critical and that team was struggling to deliver. My Manager asked me to do whatever to save the project. I worked day and night and solved the problem and delivered the results. As a result, I was promoted in the first year itself, and give extra-ordinary ratings. But, the other teams manager felt bad as he could not deliver that project in long time which i finished in very short time. I never interacted with this manager directly ever.

    Now, this other teams manager in in company B. I applied in Company B and cleared the technical interview. But, when the HR checked internal reference with the manager, he quoted I am not a team player and HR rejected me.

    Now, my question is what are my options as this person was never my direct manager in Company A and he is playing with my career. I need help immediately!

    1. The IT Manager*

      You will find a similar discussion in one of the fast/quick answer questions in the last month, probably between one and two weeks ago, but long story short, you have no recourse. This person gave an opinion which is unfortunately biased (according to you). References can come from anyone who has experence working with you.

      I suppose its possible to try and convince HR that the person gave an untruthful reference, but you would be argueing that a employee at Company B whom they trust is biased, unfair, and holding a silly grudge and that’s not going to get you anywhere because they already trust him while you’re the unknown quantity. You’ve got to let it go and move on.

  24. Lisa*

    Some very interesting feedback. i have a problem with a shakey reference. I have worked for this company for 15 yrs. My manager has only been my direct report for just over a year. Long story short we have been transitioning leadership for about 4 years, so she is all I have for a reference now. Anyway I applied for an internal position, and I let her know that they were going to call her for a reference, she immediately launched into these very minute points of dissatisfaction she had with me, which actually had nothing to do with this new job I applied for. I had a long discussion with her to try and ask for her support and unfortunately she wouldn’t relent. So now i am worried that even though my performance appraisals have never been below average and that I have done a lot before she even got there, that she is going to give me a poor reference because she does not want to replace me. The worst part is she isn’t out right lying but she is manipulating the truth to put a negative spin on it. for example, she words it as “chasing after me to do my benchmark..” when it was not at all liek that, we met and discussed adn successfully removed roadblocks that prevented me from getting ot my bechmark–coaching! Anyway I am really upset becuse she is purposefully putting up a roadblock so she doesn’t have to make the effort to replace me. What can I do?

  25. RAndom*

    A former employee who was fired due to poor quality work,absences, and lateness related to her drinking problem,informs you that she has applied for a position at another company and has already given your name as a reference .She desperately needs a job(she is a single parent with 3 children) and she asks you to give her a good recommendation and not mention her drinking,which she assures you is now under control.
    She also asks you to say that she voluntarily left the company to adress a family medical crisis,and that the company was pleased with her work.You like this person and believe she is a good worker when she is not drinking.You doubt that she really has overcome her drinking problem.however and you would not recommend your company hire her back.
    `What do you say to this woman?
    `what do you say to an employer who calls you for a refrence?
    `what if the prospective emplotee was a friend?
    `suppose the problem was a theft?
    `supose she had asked you to be a reference prior to suplying your name to her prospective employer?

    1. Ask a Manager* Post author

      Ugh, hard situation. I think you’ve got to tell her that you wish her all the best but that you can’t do what she’s asking because you can’t lie on her behalf. It could get you in trouble with your company, and it could impact your reputation. It could even make you legally liable if they hire her after hearing your false information and she, say, drives a company car drunk and harms someone.

      I would tell her that you can’t lie on her behalf and I’d simply not take the reference call.

  26. DJ*

    I was laid off from a company back in September after 3 years with no reason given at the time. They told me ‘there comes a time when 2 parties have to part ways and this is ours’. They told me they would assist me in finding a job, give me references, and not challenge my non-compete. They set me up with a recruiter and gave her an outstanding reference (from what she said) who was able to assist me in finding a great position. As soon as I started my new position they started calling my new company asking for me, the owner, and my supervisor saying I was in working against a non-compete and that they would bring litigation against me. They then began to send letters to my house, my corporate and satellite office, as well as to my parents house saying they would bring litigation against me. In total they sent 7 letters and made over 10 phone calls. In one of their phone calls to my new company they tried to drag my name through the mud (this is what my boss told me). Isn’t this embarrassment? The fact that when I was laid off they gave me no reason, then helped me find a job just to turn around do everything I already mentioned. Is any of this illegal? all done in the state of CT.

  27. New Manager*

    I’m a new (inexperienced) manager who is dealing with his first reference check of any kind for a former coworker. This person was a slow learner and had a hard time observing and repeating the same task. We trained this person over the course of a couple of months and even then they couldn’t repeat the same results that I or my coworkers achieved. Our company decided not to extend this person’s contract, citing lack of finances (not my words) as we are a very small company.

    The candidate asked me to provide them with a reference, which at the time I obliged. Now, after they left, there’s quite a bit of damage in their wake, and plenty of evidence that they did not learn how to do the job properly over the course of their time here. They’re still using me as a reference, putting my name down before asking me if it’s OK.

    I’m uncertain what to do, as I would really like to help this person get a job someplace that they can be successful, but I also don’t want to come under fire for saying that they’ll need direct supervision and potentially micromanagement in order to do so. I would like to help, but I also refuse to lie about the quality of their performance.

    Would it be wiser for me to give the standard, non-committal response of “name/rank/serial no”, or will it potentially be helpful to tell the truth that they were happy to help, but had a hard time getting up to speed as fast as other employees? Will that open me up to litigation?

    1. Ask a Manager* Post author

      You should tell the person that you no longer feel you can provide a strong reference and they would be better off using someone else.

      It’s not illegal to give a bad reference, as long as it’s honest, but it’s kinder to warn the employee so they’re not giving out your name. It’s nice that you want to help, but you can’t give a positive reference for this person, and therefore you really aren’t in a position to help.

  28. Bill*

    Reference Request

    A former employee who was fired due to poor quality work, absences, and lateness related to her drinking problem, informs you that she has applied for a position at another company and has already given your name as a reference. She desperately needs a job (she is a single parent with three children), and she asks you to give her a good recommendation and not mention her drinking, which she assures you is now under control.

    She also asks you to say that she voluntarily left the company to address a family medical crisis, and that the company was pleased with her work. You like this person and believe she is a good worker when she is not drinking. You doubt that she really has overcome her drinking problem, however, and you would not recommend your own company hire her back.

    ~What do you say to this woman?
    ~What do you say to an employer who calls you for a reference?
    ~What if the prospective employer was a friend?
    ~Suppose the problem was a theft?
    ~Suppose she had asked you to be a reference prior to supplying your name to her prospective employer?
    ~What values are at stake? Do some of the values conflict with one another?

  29. Cendari*

    I’m a temp, and have been for several years (trying to get a permanent job all the while). On my 2nd last assignment, my supervisor told me that I could feel free to use her as a reference, even though it isn’t exactly company policy to give references. So I used her as a reference on a recent application and interview, and that’s when things went sideways:
    During my assignment with this company, I was taken on as a file clerk. I had been very clear with my agency that reception was not a position I was interested in taking on at that time, and my job description for the assignment had not mentioned any reception duties except as coverage as needed, which I was fine with. About a month in, I was asked to sit at reception for the day as our usual receptionist was running late and wound up being there full-time for a few weeks, while the usual receptionist took over my desk. Neither of us were happy with the arrangement, and I called our temp agency to inform them of the reassignment of duties. Eventually I managed to sit down with the supervisor and explained as diplomatically as I could that though I didn’t mind covering reception, I really would be happier at the back of the office and I knew the other girl would be happier at the front. We traded desks again, and I wound up being extended several times for another 4 months.
    During a post-mortem for that recent interview it came to light that the former supervisor that had offered to be a reference had instead told my prospective employer that they had asked me to cover reception and that I had outright refused out-of-hand. She then went on to say very clearly that she would never hire me back, along with several other negative things (despite having kept me on for 6 months).
    Because of her comments (and misrepresentation), the company I was applying to deemed me unhire-able and I lost the job, even though it is my current temp assignment and I’ve been there for 2 months. Do I have any recourse?

  30. david*

    People are free to have an opinion but not to tell you nonsense when they don’t know the subject.

    It has become illegal to give negative reference about an employee. However, you can say nothing (negative or positive) but giving the correct and true information about that employee i.e., starting date, and job title.

  31. david*

    It’s easy from Managers to call an employee a “crappy employee”. Crappy employees exist only because there are crappy managers. Most of the managers and HR managers are paid to do a job which they wouldn’t do if those “crappy” employees (as they call them) didn’t exist to do the biggest part of their job. Managers are interested only for numbers and bigger profit. They don’t give a shit about employees and how to meet their needs. Employees are overloaded with work that 3 people should do. So, would would give the managers the “push”?

  32. sly*

    I have had my dream job offer withdrawn due to a ‘bad’ reference. When I left my last job after 3 years my mamanger and supervisor came to see me and made it clear in a ’roundabout’ way that they did not want me to leave. They both told me when I asked that they would give me references. A new manager at the company whom I have never met has given an extremely bad reference on behalf of my manager who is off sick. She did not consult my manager before she did so. In the reference she has as good as said that had I not resigned that they would have tried to sack me. Can you give any good advice please. I must admit I have already seen a solicitor who says I have a good case but I’ve so terrified of losing a lot of money if I don’t win.

  33. Martin*

    what if you have great results in a position and then move on to “greener” pastures, so to speak? At last job you earned “Sales Consultant of the Year” and comments like, “he was the best salesperson I ever had but burnt the bridge when he went to the competition so I will recommend that the hiring company not pursue your candidacy. That doesn’t seem ethical. I don’t say bad things about the companies I worked for, so why should they give a bad reference just because I left them. I was only trying to make more money so my wife could stay home with our two small children. Is it illegal for a former employer to say- “he burnt too many bridges here!” so don’t hire him. But also be able to tell me that- “I was the best Sales Representative they have ever had and lead a hiring company to look elsewhere”. What should I do? Here is what’s at stake- a good job for a company who supplies product to my former company! I would get the job easy if they just told them the truth! I put in 5 really productive years and sometimes worked 6 days a week voluntarily. It is the Coke vs. Pepsi thing- very tense relations in the market and unforgiving if you go to the competition. I welcome advice!

  34. brian*

    I just heard that it is illegal to give a bad reference if the employee never stole , fought with an employee and anything cloae to that. If they we’re just late a couple times that doesn’t count. New jobs call only to hear if employer has done anything dramatic they should worry about. Not If they were late a couple times cmon. You don’t know everyonea life by that worthless comment this goes to ALL MANAGERS. If employer didn’t do anything dramatic than don’t say anything, because you don’t know what that certain person is going through like car problems or other real issues like that and most of them have to pay bills and what not and your little puny comment goes a long way. I doubt you’ll be happy with someone living in the streets because of your worthless comment. Think about it.

      1. skeptical*

        I think that Brian’s comment was very fair and logical. Why ruin someones life over something so small? There’s far too many assholes in this world and I’m glad that the recession taught us that no one is safe.

        In my previous job, I had a big fallout with the manager as he consistently broke the law and the pressure became too much for me. He refused to listen to our concerns that current methods and systems were not working (he did not know how to follow a basic supply and demand model) and merely accused me of not trying hard enough in my job. I ended up handing my notice in stating that I felt that I was not very well suited to the position and that I wished the company the very best. If I find that this previous employer gives me a bad reference due to the consequences of his poor management then I will happily sue!

        As a previous poster has stated, references are subjective. And as the prospective employer, how does that give you a clear indication of what the employee is like?

  35. anonymous*

    hey asshole, that is completely illegal. if it wasn’t… no one would ever get a new position anywhere.

  36. Mara Batista*

    I am writing from Toronto, Canada, but I read your blog very often.
    I am coming across a very peculiar situation. For the last 2.5 years I’ve been working for a very small Company which is shrinking steadily. Finally, I got hired by another company and gave the 2 weeks notice to the owner of the current job. The guy got really mad. On the first place, he advised I can’t leave the job at the planned day as I gave him the 2 weeks notice at the end of the day and he considered the beginning of the 2 weeks the following day and one of the days in those 2 weeks happens to be a Statutory Holiday, (Canada Day). I never signed a contract with him and the “2 weeks notice” was never mentioned during the hiring process.
    After that, he advised my manager not to pay me for my last 2 weeks at work, then offered me a rise about 40% of my current rate and finally, told my manager he will find my new workplace, will call my new manager and give the worst review anybody can ever get.
    At this point, I am not worried, but it makes me think how vulnerable employees can be when your future depends on the word of (in this case) a very dishonest, selfish person.

    1. ClareinLondon*

      I agree. I am freelance in film and have just finished working for two impossibly difficult producers – dealing with them nearly made me walk off the job for the first time but I didn’t.

      The more reasonable producer has told me that he wants to mention my short fuse (something I’ve never had on another production) – I feel this is totally unfair as the other producer was like an incendiary device on set, going off all the time, sacking people, shouting etc. I only shouted back when I eventually had enough of him just going nuts all the time.

      Most of the crew agreed that the issues on the film were the producer and director but these are the people that are giving me a reference.

      Why should my career depend on the menopausal moods of the producers I’ve just worked for? It seems really unfair.

  37. Gabby*

    I’ve been volunteering for a while and the CEO of the company doesn’t really like me. I am wanting to move to volunteering elsewhere but she seems to think that because I have volunteered for two years, I am good enough to volunteer but if I was employed I would have been sacked. She claims I am not a good team player or team worker. I work well on my own and work well as part of a team. She doesn’t really take to me and I didn’t give her as a reference but she kept saying she has a right to publicly disclose because I would have been sacked had it been a real job. I can’t think what for, considering, I have always been on time, been professional and never been rude. People can give you a bad reference because they don’t like you. It happens and has happened to me a few times.

  38. Anonymous*

    I have had my job offer withdrawn due to a ‘bad’ reference. When I left my last job after 3 years my manager and supervisor came to see me and made it clear that they did not want me to leave. They both told me. when I asked, that they would be happy to give me references. A new manager at the company whom I have never met has now given an extremely bad reference on behalf of my old manager who is off sick. She did not consult my manager before she did so. In the reference she has as good as said that had I not resigned that they would have tried to sack me. Can you give any advice please.

    1. Gabby*

      And in Britain at least if the company that did the reference has a HR department, the reference should have gone through them.

      Complain to HR about it and if you have legal expenses cover see if you can see a solicitor to sue for defamation.

  39. Gabby*

    My experience as a previous line manager but also as a human being who has been on the receiving end of both good and bad references is to do the following.

    I always ask if someone is OK to give me a reference. If not, I won’t bother. I just ask for the start and end times, role description and that’s it really, without them going in to specifics on my personality because my personality may not be liked.

    If you give a bad reference, no it’s not illegal but be prepared to be sued if you give one because you are damaging people’s reputation if it’s not true and some employer’s will see through your reference too especially if they call you up to verify the reference and it turns in to a slagging match. Sometimes, giving someone a bad reference actually ends up making you as the person doing the reference be shown to be unprofessional and blinded to your own personal prejudices about that person rather than seeing what they achieved for you as an organisation. If you can’t say anything nice, say nothing at all because you can refuse a reference or just say the minimum start date, leaving date, role and role description and problems with time keeping et al.

  40. Pros*

    Miss Ask a Manager,

    While you are technically correct that it is not illegal to give a bad reference. How would you feel if you received a cease to desist letter from a lawyer after giving a bad reference and this letter was sent to your bosses, hr director etc?? This will send the HR department crazy.

    Another thing someone can do if they suspect they are getting a bad reference is to hire a a reference check service to call the suspected bad reference and take notes or record the call. This can be used as evidence. Send these notes to the bad reference giver and their boss, HR and other colleagues

    You also don’t even have to go after the company when you think you got a bad reference. You can sue the individual in something as small as small claims court.

    With all these potential headaches, its best to just give dates of employment. Ask any employment attorney. Or just say cannot comment.

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