what employers can and can’t say when giving references

by Alison Green on July 29, 2011

The awesome Donna Ballman, who just happens to be an employment attorney, has a post up today about what employers can and can’t say about you when giving references … in a response to a question from a reader here, no less. You can read it here.

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{ 16 comments }

{ 16 comments… read them below }

  1. LB*

    Our company has a employment verification number. Is this an acceptable option for when asked for a number on an application or when asked in an interview? I’m looking for a new opportunity, but not b/c I am unhappy with the company (simply money and growth my company can’t provide). I would simply prefer my current management team to not know. I have executive references who are employees but not my superior. Thoughts?

  2. Tami*

    I wonder where termination for positive drug screens fall in this spectrum of answers. Usually health information, including drug screens are considered to be confidential information. However if someone was terminated for a positive drug screen I would certainly want to be aware of that. Is a former employer allowed to disclose this information to a prospective employer? Personally, I would only disclose it if there was a signed release from the employee. Otherwise, mum’s the word for me.

    In certain fields I know that an employer is required to disclose a termination for a positive drug screen (i.e., DOT regulated). However, the employee usually signs a release allowing the former employer to disclose this information. Where does that leave the rest of us?

    1. Ask a Manager* Post author

      I have no idea! You might post that as a comment on Donna’s blog so she sees it — I bet she knows.

      (But here’s my obligatory statement that someone who smoked pot on a weekend two weeks ago could still test positive on their workplace drug screen. Doesn’t mean they’re coming to work high, any more than someone who had a glass of wine at dinner is coming to work intoxicated. That’s why performance testing is, in my opinion, a better idea.)

      1. Mike C.*

        Not to mention the tricky issue of federal employees using state sanctioned medical cannabis. But I’m preaching to the choir here.

        1. Tami*

          Well, one is in a federally-regulated job, like a driver regulated by the DOT, then one should not use state-sanctioned medical cannabis. Your job is regulated by the federal government, you know it is, why jeopardize it.

          I understand that someone who used marijuana on a weekend two weeks ago could still possibly test positive on their workplace drug screen, and that does not mean they are reporting to work under the influence. However, if you know that you are working in a drug-free workplace and that your job depends on this, then I don’t feel sorry for you. You are an adult and it is your responsibility to make good decisions. (Not to mention that you are still violating the law…at least from a federal perspective.) If you can’t make a good decision regarding that, it could make your employer question your judgement at work. I’m not saying it is right or wrong, but it is true.

          The fact is that if your employer terminates you for a positive drug screen, and your employer provides this information to a prospective employer, it is likely that your prospective employer will also question your judgement…even if you just did it once on a weekend two weeks before your drug screen. (Which is, by the way, what everyone says…no one ever says that they are a habitual pot smoker when faced with a positive drug screen.)

          So, if I, as a former employer reveal that information, I realize that I am possibly putting that person’s future employment in jeopardy. Although, one could argue that the applicant is the one that jeopardized their employment as they are the one that violated the law/work rule….Still, I would not want to be tangled in a lawsuit over this one. I posted the question on Donna Ballman’s blog, so am interested to read her reply.

          1. Ask a Manager* Post author

            Yeah, I think it’s more about employers needing to make more sensible/effective decisions about what kind of testing they do and don’t do.

    2. Michael Rochelle*

      The reality is that employers can still give that information without saying it directly. They could simply say, “Well, our company has a strict no drug use policy,” and imply that that was the issue without specifically saying that the person didn’t pass the drug test. Another problem is that the Human Resources department may be well informed about what can be said and what shouldn’t be said, but the average supervisor or manager isn’t going to be so knowledgeable so what’s said may have no boundaries. As employees, I’m sure we’ve all hear inappropriate things said by managers, so imagine what things are said in reference to former or current employees who don’t merit a glowing recommendation…especially since most times that employee will never know what was said about him or her to a potential new company. That candidate will get the same generic “we went in another direction” or “we chose another candidate” notice as everyone else that didn’t get the job and they may never know that it was due to a bad recommendation.

  3. Interviewer*

    Um, that was my question!! (does a happy dance)

    What a lot of good info! Thanks, AAM, for bringing her over.

  5. KB*

    In a personal reveiw of performance can a manager say that people in the office don’t like you? Without giving specifics or reason?

    1. Ask a Manager* Post author

      Can they do it legally, you mean? Yes. But you should respond by asking for more info, since you can’t do anything about it if you don’t fully know what the issue is.

  6. Jenna*

    I have earned PTO, I have it approved and my vacation is scheduled. However I just received a job offer from another company but I want to cash in on my PTO…if I give my employer 2 week notice and it ends 3days after I return from vacation, can he send me on my way before my cmvacation and not pay me for the PTO I earned and intended to use?

  7. J.C.P.*

    My previous job did not drug test on a normol basis. Only when there is a work related injury, so even if you were not stoned at any time at work you still get terminated when the alcahol and our drug test come back positive for pot to the treating pyhscian of work related injury.

  8. CAK*

    My current job let me go (I was in a tenure track at a college and they did not give me a good reason for letting me go other that I wasn’t a “good fit”) and HR says if a future employer calls they will give my dates worked and that they would not renew my contract. This last part seems as if it would be a red flag to a future employer. What is the best way to handle these issues
    1. do I say a new employer can contact this previous employer?
    2. what do I tell a future employer about why they will not renew my contract?

  9. TML*

    I’ve had a manager tell me to use him as reference about 2 years ago. We were very good acquaintances but he wasn’t my immediate manager. He did coach me before and I confided to him when I needed help. I was informed Saturday afternoon that my interview was Monday morning. I used him as one of my references because my immediate manager was let go. He was not too happy of the short notice regarding using him as reference and I sent an email explaining that I only had a day and a half to prepare my references. Reference check called and the only thing he said to the person checking for references was that I did not directly report to him and that I left the company for travelling reasons 2 years ago. Is this Bad or neutral reference? And how does this affect the outcome of the references process since the company will call my other 2 references?

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