giving a dishonest good reference to get rid of an employee

by Alison Green on March 4, 2012

A reader writes:

The director of my department refuses to fire or discipline poor performers and troublemakers because she hates having to go through the process of hiring someone new. One of these bad employees (does everything possible to avoid doing her job, makes false complaints about her coworkers) is currently looking for a new job, because even though she’s a source of stress for the rest of us, she doesn’t like it much in our department either. All of the department managers recognize that she’s a problem and would fire her if they could, but that decision lies in the hands of the director, who doesn’t want to do anything.

I don’t know how she expects to land a new job when she’s burned so many bridges at her current workplace. But in your experience, how common is it for a manager to lie and give an employee they can’t fire a good reference just to get rid of them?

I can’t quantify this, but my general sense is that it’s not uncommon — not so much because the manager is using this as a strategy to get rid of the employee, but because managers who are too passive and unassertive to fire an employee are also too passive and unassertive to give a critical reference. When you can’t bring yourself to give tough feedback, you’re more likely to be someone who can’t give a critical reference either.

That said, those references are rarely glowing. Instead they’re what I think of as “fine.”  The reference will say that the employee’s work was “fine,” she did a “fine job,” etc. — which is very different from “she’s the best and I wish we’d been able to keep her.” A good reference checker will pay attention to how enthusiastic a past manager is and note the difference (which isn’t to say, of course, that all reference checkers are good ones, because they’re not).

I’m sure people who do this never think about how it could potentially impact their reputation — they could be interviewing for a job one day and end up being recognized as “the person who felt Joe’s work was fine, when in fact Joe’s work was awful and he was impossible to work with.”  After all, your assessment of someone’s work says something about your own work, standards, and judgment. Which is why your director should be mortified that she has this person on her staff and isn’t doing anything about it.

And that leads us to the bigger issue, which is that your director sucks for not being willing to address performance issues, and that whoever’s above her should see this as serious negligence. Although I suspect that whoever is above her also has poor management skills, since they’re allowing this to continue.

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  1. Manage Better Now*

    I could not agree more on the point about the Director’s boss not being very competent either. Bad managers only exist because they have enablers. People that allow them to be bad. One bad link in the chain of command can spread like a cancer. Good post.

  2. Jamie*

    Just so you know, you have a typo in your first paragraph; you wrote “assertive” instead of “unassertive”. Now, back into lurker zone for me.

  4. Anonymous*

    Question: Let’s take this bad employee for a moment, and she has been allowed to be “bad” for x amount of time (long time = year +). If the boss hadn’t warned her about any of it due to being passive and unassertive only to decide to come to his senses and fire her, does she have a wrongful termination situation she can present to them?

    Reason I ask is that I have a coworker who has a bad habit, and to my knowledge, she has not been disciplined for it. I say to my knowledge because her behavior has not changed. This has been going on for nearly 3 years since she came onboard. So if she was to be fired tomorrow, can she complain for having been allowed to get away with it for so long?

    1. fposte*

      As I understand it, that’s not what “wrongful termination” means, legally speaking–it means getting fired for a reason forbidden by law (think race, religion, gender, taking FMLA, etc.). The law doesn’t require you to warn an employee before firing her.

      There may be policies laid out in employee handbooks that can rise to the level of a contract, but breaching them still isn’t a wrongful termination; it’s a breach of contract. But employee handbooks often don’t constitute a contract and such a suit is probably more trouble than it’s worth.

      Or such is my understanding, until an actual employment lawyer educates me :-).

      1. Ask a Manager* Post author

        Exactly. Wrongful termination = fired for an illegal reason, such as fired for your race or religion or in retaliation for legally protected activity. It might be unfair to let an employee perform poorly for three years and then fire them without any warning, but it’s legal.

        1. Anonymous*

          Thank you both for answering. I was discussing this with someone outside the company whom I had confided in, and they mentioned that it has gone too far to be a proper termination – to become a wrongful termination. But now it’s good to have a proper definition of wrongful termination. While I don’t wish for someone to go (one since it’s just a lousy economy to do it in and two it will mean more work for me on top of what I already do), she seriously needs to be straightened out.

          1. fposte*

            That and “hostile work environment” are the two big phrases that sound like they mean something that legally they don’t. It’s pretty confusing, really.

            1. Anonymous*

              I’m always bemused when I see how many employees believe that they have legal protection from being fired “unfairly.” Guess what? There’s no law to protect you from egregious treatment by a mean, abusive boss.

              I know this because I’ve been fired by a nasty boss who first promoted me, pursued a “friendship” with me that violated professional boundaries, then told me too much about her personal life and turned on me. Shortly thereafter, I was fired. No defensible reason was given, nor did one have to be. A smart employer gives no reason for termination. Why should they give you a reason that you could argue in court.

              Yes, if you can prove that your employer fired you solely (or maybe mainly; I’m not a lawyer) because of race, class, disability or another protected reason, you may have a legal case. Now, can you afford an attorney to plead your case? Can you even find one interested in it? Doubtful. Do you want to be blacklisted?

              Remember, your employer can say almost anything about you. So your sales were off? Maybe there was a darned good reason, but the company doesn’t have to say so. Were less competent colleagues retained while you were booted? So what? There’s no law against it!

              Wise up, people. In this country, thanks to the legal doctrine of “at will” employment, fair treatment by your employer is a matter of luck and privilege, not a right. I’ve read extensively about employee law, and I’ve found only three groups of employees who are protected from instant termination for any or no reason at all, goodbye, no severance, nothing. The fortunate few entitled to some due process prior to termination are: Federal employees, union members, and contractual employers. The rest of us can forget about fairness unless we have an unusually good case, a pocketful of money for lawyers and the good luck to find an attorney who will even defend us. I talked to several lawyers and they had no interest in defending little old me. One told me bluntly: “There’s no law against a boss being a jerk.”

              I’ve learned these harsh realities the hard way: by experiencing them first-hand. Believe me; count your blessings if you find out how vulnerable you are from a book or a blog. Unfair management destroys lives, yet there are very few laws to protect workers from such it. It’s shameful.

  5. 7th Child*

    I remember having to work under a horrible boss who had gotten glowing reviews from his former job, just so they could get rid of him. It was terrible. He was a major princess and expected us to wait on him like servants, he killed everyone’s morale. He couldn’t design to save his life, he billed items to jobs that were for his home use, ran incredible overages on jobs, and tried to force clients to accept bad design.

    He did get fired, but the damage was done. One of our best designers left, several clients had left, and since there was a lot less work in the dept, 2 people had to be let go. All this in about 3 months!

    1. Anonymous*

      He did get fired, but the damage was done. One of our best designers left, several clients had left, and since there was a lot less work in the dept, 2 people had to be let go. All this in about 3 months!

      From the OP’s PoV, I think that an assessment of the effect on the company which gave the reference might be of greater interest.

      1. 7th Child*

        oh excuse me.
        The OP asked how common it was .
        And, how would I be able to assess the effect on the co that gave the reference since I didn’t work there. I am sure they were opening champagne when he left.

  6. MaryTerry*

    When I saw the headline for today’s posting, it reminded me of a list of statements to use when commenting on poor performers, which at first glance were positive, but upon second reading were not. Things like “No one could do this job better than X”. I wish I had kept a copy of the list; it was quite amusing.

    1. Anonymous*

      One of my favorites of this type of reference is, “I’m pleased to say (s)he is a former colleague.” Said with enough enthusiasm, the requestor initially assumes it’s positive!

      1. MaryTerry*

        Here’s another one: You will be lucky if you can get (this person) to work for you.

  7. Mario*

    Suppose you have a good employee. He is not the best in your staff, but he/she does the job well. When time comes for a reference check, you will not be able to say “she’s the best and I wish we’d been able to keep her.” Instead, you are going to say that that person is fine, that the job gets done. Now, would that be perceived as a bad reference or a red flag? It would be unfair if someone take those cues as meaning that the employee might be trouble when in fact he/she is just doing the job. How do you differentiate those?

    1. Rana*

      That’s the problem I always face when writing letters of recommendation; by the law of averages, most people are _not_ going to be superior performers, but it feels like people expect all recommendation letters to be heartily enthusiastic and read things into them when they’re not. I don’t want to lie and puff someone up inappropriately, but I also don’t want to ruin their chances when they’d do a perfectly fine job either. I usually end up giving specific examples of something that the person was good at, but worry that by not being Rah! Rah! Enthusiastic! Best Candidate Ever! (which is simply not my style) I’m causing more harm than good.

    2. Anonymous*

      Maybe you won’t be able to say he is the best, but if he was a good, competent employee, there is plenty you can say to highlight his good points. “Bob was always the first one in the office, worked really hard and got along well with the rest of the team.” Not every employee is going to be a genius super star. That doesn’t mean that they are totally useless and awful to be around.

      IMO, if you honestly cannot think of anything else to say about an employee other than “Oh, s/he’s fine.” then you should not be that person’s reference.

    3. Ask a Manager* Post author

      Mario, it’s not so much that it signals that the employee might be trouble as it is that it signals that the employee is … fine, but not great. And for a lot of employers, that’s enough. That’s not a “bad reference.” But really good hiring managers are looking for the people who are truly great.

      2. Teri*

        Right, but according to you, “really good” reference checks and hiring managers also look to coax other companies to violate their companies rules about not giving references. You’ve mentioned before that you’d try to do that, but what if you were talking to the employment verification line of a large multinational, where the person on the other end of the line is thousands of miles away from anyone that person ever worked for?

        1. Ask a Manager* Post author

          My concern is making sure that I hire the best person, not what another company’s policies happen to be. It’s not about coaxing someone into it though; people will either speak to a reference-checker or not. If they won’t, I’m not going to try to cajole them into it, but I need the candidate to give me references who will.

          1. Charles*

            But, BUT, will you use it against a job seeker if they do NOT have a manager’s reference? Nor can you get one?

            So many companies today do not allow managers to give references – their policy is to refer all reference seekers to HR. I recall that you (and others) have stated in the past that if someone was really good then that policy would/should be violated. Will you use it against the job seeker if you do NOT get a manager to violate that policy?

            1. Ask a Manager* Post author

              I’ve literally never had a situation where the top candidate couldn’t provide references. In my experience, great candidates have references who are thrilled to speak about them. If, hypothetically, I had a candidate who I believed to be fantastic but who couldn’t offer any references … I’d consider the totality of the situation, sure, but it would definitely make me concerned, and it would feel like a much bigger risk to hire that person.

              1. Charles*

                Thanks for replying so quickly (I guess your foot is keeping you locked to a computer?); But, I really meant that “you” as a generic you; sorry for the mix up.

                YOU, AAM, are more rational than most hiring managers. Far too many folks cannot think outside the box to see the whole situation. Or the hiring company has their own policies that only manager’s reference count. (Hospitals and other healthcare providers do this and for good reason)

                Even more wacko are the companies that require a manager’s reference but have policies against manager’s giving references!

              2. Jamie*

                This. I’ve been under this policy more often than not and the answer when asked for references vary between:

                1. We have a policy under which I’m only allowed to give dates of employ, title, and salary. No, I’m sorry I am not allowed to speak to ex-employees work. (In a very stoic tone of voice and the call ends in > 2 minutes.)

                2. We have a policy under which I’m only allowed to give dates of employ, title, and salary. No, I’m sorry I am not allowed to speak to ex-employees work, which stinks because I would love to tell you in detail how awesome they were! (In a very enthusiastic tone of voice and offer to the former employee to connect via linkedin where I could give a far more detailed recommendation which is not against company policy.)

                Trust me – a good reference checker can read tone.

            2. fposte*

              Charles, the problem is that the hiring manager’s job is to fill the position with the person who seems the likeliest to be a success. There’s only so much I can do, task-wise and time-wise, to ascertain that likelihood. I haven’t found anybody bereft of actual references either, but yes, it could hurt an applicant if nobody’s willing to speak for their merits. And while that’s not fair if somebody’s been a stellar employee and nobody will admit that, I’m not as a hiring manager being unfair to hire somebody with a documented track record instead.

              1. Charles*

                my, we do seen to be talking past each other here;

                Yes, of course if someone has NO references then that is clearly not a good sign; but my point is that many, many companies today have policies against MANAGERS giving references that I would think it is not wise to make blanket statements that if someone has no MANAGER’S reference then that person isn’t stellar.

                I think that by saying that if someone is really that good the manager would be willing to break the policy is, in fact, ignorant of the real world. You are lucky that the company doesn’t find out about this and fire the manager for breaking policy. I have in fact worked for just such companies, and I would NEVER ask someone to jeopardize their job, their pension, etc just for a reference.

                I have seen many an outstanding employee get screwed by such companies and “don’t have time” hiring folks. Both managers for breaking policies and job seekers for having references of “no real value.”

                The fact that AAM has never come across this situation tells me that she (and others) have possibly come across this situation but do not recognize it for what it is – poor management, bad policies, screwed job seekers.

              2. fposte*

                So are you simply arguing that a manager-only reference rule would be a limiting policy? Then we agree. Are you arguing that it’s the hiring manager’s actual obligation to check beyond lukewarm manager’s references in case everybody else thought the person was great? Then we don’t.

                It sucks that some employers are handicapping their alums in this way, but it doesn’t then become a prospective workplace’s obligation to make up for that unfairness; similarly, I’m unlikely to be able to extend a deadline until somebody’s references come back from vacation, even though that’s not the employee’s fault either.

  8. R*

    I don’t know about Alison’s answer because I was a good employee, but I had a bad manager. She probably would say I was just “fine” when in truth I gave her hardly any drama at all, did my work, was very reliable, and nowhere near a basket case as some of the other people were who were in my position. I’m just wondering Alison, as you put so much emphasis on what a manager has to say, how can a reference checker know that the discussed employee may have had a bad manager and they really are an awesome employee?

    1. Ask a Manager* Post author

      Hopefully you have other references who will balance her out — if you’ve got multiple people saying you’re awesome and one who’s more lukewarm, she won’t carry as much weight.

    2. Joey*

      R,
      Great isn’t the same as great relative to the mostly crappy employees I worked with. You really didn’t point out anything that showed anything more than fine.

      1. R*

        Well I suppose I could write a paragraph or two why I excelled as an employee. However, Alison answered my question just fine and I saw no reason to fill up her blog space with how wonderful I think I am as long as she answered my question.

  9. Sadya*

    I had a nightmare telesales agent who I had to fire but HR managed to make it messy and painful for everyone. The HR did not inform me in prior discussions that the experience letter would not be issue to the employee. I found this very unfair and needless to say b/w haggling with HR & the employee crying wolf, I was just so flabbergasted. Next time around another problematic employee was looking around for an internal transfer and I put in a good word for her & facilitated the process.
    Yes it wasnt fair to throw my load onto someone else, but at the point in time it was the best option for me.

    1. Joey*

      It just kills me how much managers rationalize dumping a crappy employee on someone else. Even worse is that you would do it within your own company.

      And I can echo Alison’s sentiments that it happens far more often than you think. How else do you think crappy employees get new jobs?

      1. Anonymous*

        If you can foist said employee on a competitor, it would arguably be negligent not to do so.

      2. Sadya*

        You are right Joey, dumping a bad employee on someone else cannot be rationalized. But the truth is shifting someone to a different function with a manager who is better than me- that should give the employee a second chance. Maybe the employees werent the problem- maybe they just needed someone who could manage them better.

  10. Robin*

    I have worked for a company in which a branch manager was sued for giving a glowing reference to a former employee who went on to steal from his new employer.

      1. Joey*

        I’m skeptical of the article. I have a hard time believing a company that fails to disclose the specifics for separation would be liable. That would mean an applicant could sue if they have some documentation that they were a great employee and the reference isn’t confirming that. Besides, so many companies will allow an employee to quit instead of being fired because its frequently a win win. So saying its a resignation would be the truth, at least the surface of the truth.

        Now giving a glowing reference for someone that was fired for stealing, maybe, but it still sounds like a long shot especially if they were never criminally convicted for it.

        1. Ask a Manager* Post author

          As far as I know, the successful court cases around this have been instances where the previous employer knew that the person had stolen money, assaulted someone, etc. In other words, they had knowledge of criminal conduct that they didn’t disclose — but not just that the employee wasn’t very competent.

          1. Charles*

            Many of the court cases have involved “public safety” such as when a hospital doesn’t disclose the fact that a doctor or nurse was fired for actual harm done to a patient.

  11. OP*

    Thanks for answering my question, AAM!

    Our director is just as awful as she sounds, which is why I’m leaving the company (got hired for a better position elsewhere) and why turnover is so high in my department — I’m considered one of the longer-term employees, having been here a little over a year. The average employee leaves about 6-8 months in.

    I have a lot to say about her, but mostly I was frustrated as a top performer who had to work with slackers who never got written up or fired. People have screamed at their managers, fought with each other, shown up late on a daily basis, texted and chatted on the phone with family all day at work, without any reprimand.

    The GM (her boss) makes an effort to listen to our complaints and regularly holds roundtable discussions with front-line employees, but ultimately, little has changed and our director is still in office. I was sorely tempted to send a complaint email to the GM, like, “There’s a good reason that everybody in this department is leaving,” but I figured that would just burn bridges and make no difference anyway.

    1. Ask a Manager* Post author

      If the average tenure is 6-8 months, they know they have a problem, so you can at least take solace in that! (And if they don’t know that they have a problem with stats like that, then they are well beyond help.)

  12. Commenter30*

    If you know an employee is a drug addict and you give them a good reference, then you can get in ridiculous trouble when they get a job as a crane operator or a truck driver.

    Drug addiction and spectacular failures are the only thing you can really get in trouble for omitting; i.e. if someone accidentally burns your building down and you neglect to mention it, then the new employer can turn around and sue you when the same thing happens to them.

    However, the only time you have to mention drug addiction is when it’s spectacularly obvious and there’s actual proof that it took place.

  13. Natalie G*

    I have a horrible supervisor that was hired in with great references (the owner told me this). I told my mother what issues I was having with her and how other people were seeing the same things. My mom, a retired HR manager of a veterans home, said they used to give good references for employees they wanted to get rid of. I don’t know why they didn’t fire them, but she did say they used to do that…. I don’t agree with it, but at least its an honest testimony of what can be going on at some companies… I never thought that may be the case with my new super, but it makes sense, she did complain how new ownership came into her previous firm, then she didn’t like it anymore. I don’t think she likes it here anymore either after we caught onto her and try to avoid her as much as possible.

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