Blog Layout

What Employers Can Legally Share in Reference Checks

26 February 2025

Reference checks... what can you share about a (former) employee?

Funny thing... while a prospective employer can ASK whatever they want about an applicant, there are only 3 pieces of info a current/ex-employer should answer as part of a reference check: 
  1. Job title.
  2. Date range worked.
  3. Whether the employee is eligible for rehire at your company. Note that the categorization of “eligible for rehire” comes down to whether you terminate for-cause or at-will. 
Providing any other info in a reference check puts YOU at legal risk.

There is one exception: the case of public safety. 

If you fire someone for, and have evidence of, something like sexual assault/harassment but the victim chooses not to press charges, you would fire them for-cause and have an obligation to share that info. BUT MAKE SURE YOU HAVE PROOF! The same applies to situations like workplace violence, theft, fraud, etc. Even though it’s not necessarily the employer's place to press charges, you absolutely need to share the information with prospective new employers in the interest of public safety.

And by the way, this isn't part of any official regulation, it's about case law. Ex-employees are finding new and creative ways to sue their past employers, so it becomes legally risky to provide info because it's easy to accidentally "defame" an ex-employee and kill their ability to earn a living. Even innocuous statements can pass along your not-so-secret opinion, rather than fact, resulting in "boss-blocking." 

All that being said, the stars really do need to align before you'll ACTUALLY get in trouble with this. You would need all of the following:
  1. You say something ill-advised during a reference check.
  2. What you said prevents an ex-employee from getting a new job. 
  3. The employee is told/figures out you said the ill-advised thing that cost them the job. 
  4. They have to know they can sue you over it.
  5. They have to take the time and effort to do so.
While you're not inevitably facing a lawsuit if you disregard our advice, it's still worth doing your best to follow these rules to stay out of risky territory. 

On the flipside, what if you're the prospective employer and you want to learn as much as you can about the applicant? As I said, you can ask the ex-employer whatever you want, but if they're wise they won't tell you much. As another source, you can ask the applicant for PERSONAL references. THEY can say whatever they want (much like the applicant can) and their information is fair game... though it's up to you whether you believe them or not.

If you want to verify the employee's skills, and whether they actually did the work they claimed at the previous job, we recommend setting up a skills test as part of your interview process. Find out more about what they are actually capable of before you invest in their hiring, without relying on a former employer to confirm.

As always, we hope this helps!
7 April 2025
Reasonable Accommodations in the workplace are no joke - you can get into serious legal trouble if you don't comply with the ADA. Yet here's a case study on a company who terminated someone for an issue directly related to their disability and was not held legally liable. Check out the details of how this might apply to your business.
2 April 2025
Home services companies might be tempted to classify workers as independent contractors, but we STRONGLY advise you to hire them as W-2 workers instead. And it's not just because the government might fine you (big time!). Read more for tips on why it'll be in your company's best interest.
24 March 2025
Listen to The H.R. Guy explaining the nuances of HR for the Trades in 2025, with tips on common HR pitfalls and how to avoid them, the value of Stay Interviews, key mistakes with performance pay, and the ultimate goal of "Representing the Brand."
13 March 2025
You thought you were rid of that toxic employee, but now he's causing you even more problems - posting negative Google reviews and refusing to return company property. Why is this happening?
6 March 2025
As a residential service provider, you might not think you're in the construction industry, but the Department of Labor has its own definition... and regulations. If you're in HVAC, plumbing, electrical, garage doors, or roofing, here are some things you need to know.
19 February 2025
Some job candidates spend more effort prepping to "ace" an interview than they will spend on doing the job! Use these tips to figure out which candidate will be the best employee, and to avoid legal hot water.
6 February 2025
If your business struggles with employee tardies and unexplained absences, an information Attendance Point System might be a good solution. Use these tips to create a system that's consistent and effective.
27 January 2025
Diversity, Equity and Inclusion initiatives have been all the rage across the government and the business world. President Trump has signaled a step back from this. Here's why the H.R. Guy doesn't think this is as dramatic a backswing as the media wants you to believe.
21 January 2025
Most businesses that use point systems for attendance do it wrong, which can cause employee unrest or even legal issues. We break down what these systems are, how they can lead to trouble, and how to set them up correctly.
7 January 2025
Deducting money from employee paychecks is a given (taxes, anyone?). But there are legal nuances, especially when it comes to loan repayments and final paycheck deductions. Here are a few tips to keep you out of trouble.
More posts
Share by: