Ask Human Resources: Providing Letters of Recommendation for Departing Staff: A Worthwhile Pursuit or an Invitation for a Lawsuit?

By Jodi Schafer, SPHR, SHRM-SCP

QUESTION:

One of my top performing staff members gave notice.  She has been an outstanding employee and is leaving because her husband has been transferred out-of-state.  She asked me for a letter of reference, which I happily provided.  In this letter I sang her praises describing her strong customer service skills, her attention to detail and her loyalty to the practice.  She was pleased with it and shared it to another staff member. 

Shortly after this occurred, one of my mediocre employees resigned.  She also asked for a letter of reference.  Unfortunately, I had very few positives to say about her.  So, I wrote a letter that was generic.  It included a statement that, “She did what was asked of her,” and verified her hire date and wage.  She was upset with letter and wanted to know why her letter was not as nice as her co-worker’s.  When I told her that I had some problems with her performance and that I was not going change her letter, she became very upset saying that I should have told her about these problems.

Is this going to get me in trouble?  Should I try to fix this and if so, how?

ANSWER:

To answer your first question, no.  I don’t believe your letter will get you in any trouble because you did not write any negative, unsupported comments about the mediocre employee.  Her issue was not with what you said, but rather what you didn’t say.   

In Michigan, an employer is presumed to be acting in good faith and thus immune from defamation lawsuits while providing a reference if you can answer in the affirmative to the following questions:

  1. Are the comments job-related? For example, you can say an employee “was always on time,” but you should not continue that sentence with…”even though she had three children at home.”   Her motherhood is not job-related. 
  2.  Are the comments you made true?   Opinion is different than facts.  Attendance records or patients’ comment cards with complaints are facts.  Without documentation in the personnel file to back up your comments, you should avoid talking about it.   
  3.  Is the behavior/performance documented in the employee’s file?   This is where you could have avoided a bit of heartache with your most recently departing employee.  If you had addressed the problems in her performance appraisal, with her signature, she wouldn’t have been surprised by your generic letter.  Any negative comments you might make while providing a reference should be supported by documentation in the employee’s file.
  4. Are you allowed to share this information in accordance with state and federal law?  We hit on this a bit in question #1.  Be sure you aren’t sharing confidential employee information that is prohibited by law, I.e. anything to do with an employee’s protected classification and/or health history.

Based on this information and the content of the second employee’s letter, you have nothing to fix in this current scenario.  If you wanted to put a more consistent process in place for the future, you might consider limiting what you say in your letters to the employee’s name, position, dates of employment and whether or not s/he was an employee in good standing when they left.  You can then close the letter with permission to contact you for more information.  When a prospective employer calls to follow-up, you can then elaborate on how great (or not great) the ex-employee was using the questions listed earlier to guide your conversation.

To add another layer of protection, I encourage you to get a signed release from the ex-employee before providing any additional information (verbal or written) regarding performance, behavior and/or attendance. You can build the same thing into your hiring process by adding this clause to your employment application.  That way you have a signed document to share with past employers whom you are calling for a reference. 

While providing references can be a touchy area, they are a valuable part of the hiring process.  Because of this, I encourage you to keep providing them (either verbally or in writing), using the information provided here as your guide.  Many times, the same employee is jumping from one office to another in a community. You want to establish a relationship with these offices so they can feel comfortable telling you the truth about an employee, good or bad, and you can do the same in return.