Betwixt and Between: The Dilemma of Employee References

Concerns have arisen over employers' collection and sharing of information about employees, especially employment references. As a result of the dramatic growth in the number of lawsuits brought by employees, many employers have seriously curtailed the information they release concerning current and former employees. However, even the refusal to release information carries a legal risk. Employers who do not obtain information concerning applicants can be liable for negligent hiring, and those who knowingly withhold negative information regarding their former employees may be liable for negligent referral. This paper explores these expanding liabilities and suggests strategies to allow employers to manage the risk of communicating employee references.