Dispelling the Myth that Employers Cannot Give an Employer Reference Beyond Confirmation of an Employee’s Title and Dates of Employment

employer reference

Despite a common misconception to the contrary, Ohio statutory law and Ohio case law do not prevent employers from providing a detailed and honest employer reference about a past employee upon request. Further, Ohio law does not punish employers for providing truthful responses to inquiries from a prospective new employer of a company’s past workers. In fact, Ohio Revised Code §4113.17 grants prior employers privileged immunity from lawsuits for a truthful employer reference given about a past employee upon request from a potential employer.

Many companies have policies that they will only confirm the dates of employment and title of a past employee. As a result, the misconception has developed that it is somehow illegal to give a bad reference. Prudent corporate policies, however, do not create law, and it is not illegal to give a bad reference. Under R.C. §4113.17, Ohio law grants employers immunity for statements given to provide a reference response. The employer immunity statute grants employers immunity as long as the employer’s reference response is not knowingly false, or given “with the deliberate intent to mislead the prospective employer ***, or [given] with malicious purpose.” See R.C. §4113.17(B)(1). The statue notes one further exception to this immunity if the prior employer’s statement amounts to “an unlawful discriminatory practice.” See R.C.§4113.17(B)(2).

Thus, the myth that employers may not provide a response to a reference request is absolutely false. And, moreover, employers actually have immunity for providing truthful responses to reference requests. Additionally, R.C. §4313.17 also states that a past employee who brings a lawsuit against a prior employer for giving a bad reference may be forced to pay prior employer’s attorney’s in defending the lawsuit.

Despite the above Ohio statutory immunity to employers, maintaining a no reference policy is still the most prudent approach for companies to take regarding their past employees. The only problem with no-reference policies is that the policies prevent employers from sharing information about legitimate misconduct by prior employees, which would surely make prospective future employers think twice about a candidate. The unfortunate consequence of no-reference policies is that, in some instances, the policies enable truly bad employees to misrepresent prior performance and infect a new company with the same attitude and conduct problems that they had with prior employers.

Regardless of which approach your business takes regarding responding to inquiries about past employees, all employers should be informed about the helpful protections that the Ohio Revised Code grants employers. To the extent that employers do give negative references in response to requests, the best approach is for employers to be brief in those responses. From a best practices standpoint, employers should limit the content of reference responses to only address issues that are also documented in the prior employee’s personnel file. If you have any questions regarding the employer immunity statute identified in this article, or regarding any other employment concerns, contact one of the employment attorneys at Nardone Limited.

Nardone Limited attorneys handle the full spectrum of employment law issues, including providing consulting advice, assistance with separation agreements, conducting internal employer investigations, defending EEOC or other administrative investigations, and handling litigation alleging wrongful termination or other employee claims. If you would like more information on the EEOC or the OCRC, or need advice or representation in an employment dispute, contact one of our employment attorneys.