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What are you allowed to say in an employment verification?

On Behalf of | Apr 22, 2022 | Employment Law

A former employee of your company is a candidate for a job elsewhere. The organization he applied to has asked for his employment verification from you which in addition to dates of employment, may also seek items like:

  • The person’s capabilities and specialized skills
  • Why they departed the company
  • How they did on the job
  • Their title

Verification of salary is not allowed in California.

The ex-employee is a nice guy, but was a mediocre worker. He was unmotivated, showed up late a lot and got caught looking at social media on his office computer during work hours. You can’t in good conscience give him a glowing review. On the other hand, if you provide entirely truthful comments that mention his deficiencies, can you be sued?

This is a dilemma for employers and human resources professionals. You want to be honest, but you fear that being forthright about anything negative could provoke a lawsuit from them.

What does California law say?

The laws governing this matter differ from one state to another. While California law provides that “communication concerning the job performance or qualifications of an applicant for employment” is considered “privileged communication;” however, it is only “privileged” if it is “without malice.”  Therefore, a former employee bring a lawsuit ensnarling the employer in a costly lawsuit even if statements were made with good intentions.  This of course does not even consider contractual agreements such as a severance agreement that contains a non-disparagement clause.

In addition to potential liability for giving negative reviews, there may also be liability when voluntary recommendations fail to disclose facts which materially qualify those statements.

Given the aforementioned, when a former employer receives an inquiry related to a former, employee, the best action is to limit the response to factual information verifying employment and dates related thereto including any applicable job titles.

The best approach is to give only basic statistical data.

If you find yourself not knowing what you can and cannot disclose about a former employee, seek legal guidance. You could be saving yourself from problems in the future.