What to Tell Prospective Employers and Your Workforce About a Former Employee

Here are some tips on what to tell your remaining employees -- and other employers calling for a reference -- about the recently departed.

Whenever one of your employees leaves, you will have to decide what to say about the departure. The decision is pretty straightforward if the employee left on good terms. You and your former employee can come up with a mutually agreeable statement to explain the departure. Or, you can simply tell your remaining employees, and any prospective employer who calls for a reference, the whole glowing truth. But if the employee was fired, you face a more difficult task.

Defamation Lawsuits: The Fired Employee's Revenge

If you are not careful in your statements about former employees, you might find yourself on the wrong end of a defamation claim. To prove defamation, a former employee typically must show that you intentionally damaged his reputation by making harmful statements about him that you knew to be false.

At first glance, it might seem like only the most spiteful employer would get caught in this trap. But if you make an unflattering statement that you don't absolutely know to be true, it could happen to you. Most reasons for firing put the employee in a bad light. And an employer often cannot prove what she strongly believes to be true -- that an employee is stealing from the company, is incompetent or lied about job qualifications, for example. An employer who makes such statements about a former employee could get into trouble. Your best policy is to say as little as possible and stick to facts you can prove.

What to Tell Other Workers

Workers who remain will certainly want some acknowledgment that their former co-worker is gone. Shortly after an employee is fired, you should make a brief statement to your other workers -- either in writing or in a company meeting. Don't go into detail. Tell your employees that their former co-worker is no longer with the company, tell them who will handle the tasks that person was responsible for and ask them to direct any questions to you. For example, you might say, "Frank no longer works for the company. Until we are able to hire a replacement, Susan will take over his responsibilities. If you have questions about work you are currently doing that involved Frank, please bring them to me and we'll figure out what to do."

What to Tell Potential Employers

When a potential employer calls for a reference, you will likely feel trapped between wanting to tell the truth and fearing a lawsuit if you say anything unflattering. Unfortunately, this fear is entirely reasonable. The number of defamation lawsuits filed over negative references is growing all the time. And even if your former employee can't successfully prove that you defamed her, you will have to spend precious time and money fighting the allegation.

Here are some tips to help you avoid problems:

• Warn a difficult employee that your reference won't be good. Yes, the employee should know this already. But you can avoid problems at the outset by stating the obvious: I cannot provide a positive reference for you.
  
  
• Keep it brief. Some employers adopt a policy of only giving out dates of employment, job title and final salary to prospective employers. If you choose to tell more, keep it to a minimum.
  
  
• Stick to the facts. Now is not the time to speculate about your former employee's bad qualities, or to opine on the reasons for his failure to perform. Limit your comments to accurate, easily documented information.
  
  
• Don't be spiteful. Many states offer some protection for former employers called upon to provide a reference. These laws generally provide that you will be shielded from defamation lawsuits as long as you provide information in good faith. This is a fairly nebulous legal standard, but it surely does not cover nasty or mean-spirited gripes.
  
  
• Don't give false flattery. If you had to fire a real bad egg (for example, a worker who was violent in the workplace or threatened coworkers), don't lie about it. You may choose to give only name, rank and serial number, but if you give a more expansive reference, don't hide the bad news. You may find yourself in a lawsuit for failing to warn the new employer about these serious problems.
  
  
• Designate one person to give references. Choose one trusted person in your company to be responsible for all references, and tell all of your employees to direct inquiries to that person. Make sure that a record is kept of every request for a reference and every response, in case of later trouble.

To read and printout a copy of the Form please link below.

A Quiz: Firing Employees

You can download a free copy of Adobe Acrobat Reader here.

Copyright 2005 Nolo

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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