The main risk associated with giving references is that the employer may end up defending a defamation claim. For example, statements that adversely reflect on an employee´s abilities or character are defamatory. Employers have a "qualified privilege" to communicate defamatory information if the statements:

• Are made with a good-faith belief that they are true.
• Serve a business interest or purpose.
• Are limited to that specific purpose.
• Are made on a proper occasion.
• Are communicated to proper parties.

If an employee files a defamation suit, he or she may be entitled to a jury trial to decide if the employer has abused the privilege and is in violation of the foregoing guidelines.
 
Q. Are employers required to give references for current or former employees?
A. No. Employers are not required to give references. However, a consistent policy should be adopted. If the policy is to decline requests for references, prospective employers should be informed of the policy and advised that no negative or positive reflection on the employee is intended.
 
Q. Should employers answer telephone requests for references?
A. It is not a good idea to answer telephone inquiries. Since one of the conditions of qualified privilege is to provide information only to proper parties, it is better to require that all requests be in writing on company letterhead. Additionally, written communication provides documentation of the information provided.
 
Q. Is it necessary to get a signed release from the employee?
A. Although releases are not required by law, they can provide support to the employer´s position that the information was given for a business purpose and on a proper occasion.
 
Q. Many inquiries center on subjective information. How can employers demonstrate a "good faith belief" of truth under those circumstances?
A. When answering questions, avoid opinions and limit comments to documented observations. Never repeat rumors, gossip or information received from anonymous sources.
 
Q. Prospective employers frequently telephone directly to the former employee´s manager or supervisor for information. How can employers protect themselves?
A. It is a good idea to adopt a consistent policy that all requests for references will be handled by one person or a particular department. Managers and supervisors should be trained to refer all such requests to the appropriate person or department and to consistently refuse to comment when contacted directly.
 
Q. Are employers required to check references before hiring employees?
A. No. There is no law that requires reference checks. However, employers must exercise reasonable care to insure that employees, customers, clients and visitors are free from harm inflicted by unfit employees if the employer either knew or should have known of the employee´s dangerous propensities. Employers who fail to exercise reasonable care to screen out unfit employees may be sued for negligent hiring or negligent retention of unfit employees.
 
Q. What steps should an employer take to help reduce liability for negligent hiring or retention?
A. Most lawsuits focus on the failure to contact all prior employers, the failure to attempt to verify the trustworthiness of the applicant and failure to verify activities when there are suspicious gaps in the employment history. The following practice tips may be useful:

• Write a letter requesting references from each employer listed.
• Verify educational degrees.
• Look for gaps in employment history, obtain explanations for the gaps and verify the explanation.

Q. May employers request information from previous employers relating to attendance?
A. Information may not be requested or obtained from third parties which could not be requested directly from the individual. Employers may inquire about an individual´s attendance record with former employers; however, follow-up questions regarding reasons for absence are unwise because they are likely to elicit information relating to disabilities. Employers may also ask questions designed to detect abuses of sick leave. For example an applicant or former employer may be asked how many Mondays or Fridays were missed other than for approved types of leave.
 
Q. May employers inquire about or give information relating to on-the-job injuries or workers´ compensation claims?
A. Again, since this information could not be obtained from the individual directly, it may not be discussed when obtaining or giving references. Additionally there must be no discussion about disabilities or physical or mental limitations.
 
Q. What is blacklisting?
A. Blacklisting is the intentional prevention of the future employment of an employee by the former employer. Blacklisting usually occurs when the former employer makes representations to prospective employer(s) that the individual should not be hired. It should be distinguished from a reference, which is essentially a request for information about job performance. Blacklisting is an unlawful employment practice in Oregon. ORS 659.230
 

 
 

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The Technical Assistance for Employers unit offers employer seminars, handbooks, and other materials covering a number of topics. For additional information, visit our website at www.oregon.gov/boli/ta  or call our Employer Assistance line.

 

Technical Assistance for Employers

Bureau of Labor and Industries

800 NE Oregon Street, Suite 1045

Portland , OR 97232

971-673-0824

www.oregon.gov/boli

These materials were prepared as a general summary and teaching guide. The mission of the Technical Assistance for Employers Program is to promote compliance with civil rights and wage and hour laws through education. Technical Assistance does not provide legal advice. In order to determine the legality of any matter or to protect your legal rights, you should contact an attorney. Check the yellow pages of your telephone directory or contact the Oregon State Bar Lawyer Referral Service at 1-503-620-0222 or 1-800-452-7636. THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT.