Post Employment Inquiry

Editor's Note: The cardinal rule for post-employment inquiries: just the facts.

Michael JacobsonOverview: Inevitably, employees will leave an organization, whether the departure is retirement, resignation or employee termination. In many cases, HR must still deal with post-employment inquiries regarding ex-employees, which can be another area of exposure if inquiries are not handled properly.

To guard against exposure, many employers implement a "no references" or "limited references" policy. Both of these methods are effective in reducing exposure from post-termination inquiry claims like defamation. However, a "no references" policy may paint the employer in a bad light, particularly if ex-employees or other organizations perceive that the employer is not being cooperative in assisting an ex-employee to find a new job.

In that regard, a "limited references" policy - restricting reference material to factual information only - is a better approach. There are no federal or state laws that restrict employers from providing truthful, accurate, job-related information regarding ex-employees to potential employers. And when it comes to claims for defamation brought by ex-employees, the truth is always the best defense.

Trends: Claims for defamation are interpreted similarly in most jurisdictions, but employers should still familiarize themselves with how defamation claims are addressed in their state. Thorough and accurate personnel records may go a long way toward substantiating the truthfulness of an employer's post-termination recommendation. If the employer can produce contemporaneous records supporting the legitimacy of the information included in a communication to a potential new employer, it can build an extremely effective defense against claims for defamation.

Author: Michael Jacobson, JD, Legal Editor

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HR guidance on risks in responding to post-employment inquiries and ways to manage inquiries while guarding against exposure to defamation claims.