Despite their reputations as pit bulls and sharks, lawyers turn into timid mice when advising clients. The only good risk is an avoided risk, and self-preservation is valued more than common sense or human decency. If any hypothetical threat of litigation lies down a given path, legal counsel will advise you to stay at the trailhead.
Diane Stafford’s column in last Thursday’s KC Star raised the troubling issue of employers refusing to provide references for former employees. It’s a common practice for corporate employers to refuse comment on former employees beyond the dates of employment, former job title and, perhaps, whether they are eligible for rehire.
From the risk-loathing view of an over-paid lawyer, this makes perfect sense. There’s no direct benefit to the employer from sharing descriptions of the former employee’s skills or flaws, and there is an infinitesimal chance that if you say something negative, the employee could (somehow) find out and use it as evidence to support some sort of discrimination claim. Even more hypothetically, if you say nice things about good employees but nothing about bad ones, the bad ones could conceivably (somehow) find out that they aren’t getting the same kind of references that the better employees are, and use that fact as evidence to support some sort of discrimination claim.
There’s also a chance that flying monkeys might attack your corporate headquarters, so legal counsel advises you to keep the windows closed and locked.
The fact is that we all risk litigation every day, when we drive, when we speak, when we go to the grocery store. The risk of litigation in most things is minuscule for those who are not flaming jerks, and the same goes for corporations. If you treated an employee well during his or her time with you, chances are pretty remote that you’re going to get sued, and, if it does happen, the chances are even more remote that a reference setting forth your views are going to be outcome-determinative in a lawsuit.
But as long as that chance exists, dancing somewhere on the head of a pin, corporate counsel will want you to avoid it unless you can articulate a valid reason to face it. And, no, common sense and human decency don’t count as valid reasons to corporate counsel.
If you’re in a policy-setting role at your company, this is an instance where you should tell your lawyer that you appreciate their advice, but that you’re going to provide references on your former employees that are fair, accurate and informative, in the hopes that other employers will similarly help you in your decision-making. It might not be the most conservative legal approach, but it’s the right thing to do.
(By the way, this isn’t legal advice. This is human being advice. Sometimes they differ.)