In the past, if a prospective hire couldn’t produce a positive reference from his previous employer, there was little likelihood that he or she would be selected. After all, it’s reasonable for a business’s management to learn as much about a prospective hire before they commit to hiring him or her. A positive reference could assist an H.R. director or manager in making a selection between two close prospects—and so could a negative one. However, in Virginia, businesses may begin finding it increasingly difficult to obtain direct information from current or past employers. Recent court decisions have allowed managers who provide negative job references to be sued in the circuit courts.
In these cases, while it’s incumbent upon a plaintiff—the current or former employee who is making the claim that the negative reference was unfair and damaging—to prove that the employer was inaccurate, many corporations are erring on the side of caution by declining to provide employment references. Business attorneys in the Commonwealth of Virginia have become increasingly cautious when it comes to advising their clients about employee references.
The need for this discretion is reflected in a recent Fairfax County Circuit Court decision. The Fairfax case involved a prospective hire listing his former position as a manager on a job application. When the company called the former employer for a reference, the contact person allegedly stated that he had lost his temper and “did not fit in.” Naturally, the employee wasn’t selected for the new position. The plaintiff argues that his former employer cost him the job opportunity. So, the plaintiff retained the services of an attorney and sued the former employer.
While suits of this type are still infrequent, most Virginia business litigation attorneys recommend that employers institute strict policies against providing any job referrals—positive or negative. It’s important to note that there must be a prohibition on even positive job referrals. Otherwise, the implication of a refusal to answer a request for a job referral is tantamount to telling the requester that the employee was subpar.
When drafting any policy for your business, it’s always beneficial to consult a Virginia business law attorney for legal advice.
