Avoiding Pitfalls When Giving References for Former Church Employees

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Employers routinely get calls asking them to verify information about former employees. A manager may only be asked to confirm a person’s dates of employment, but quite often the questions go further: How did the employee perform? Did the manager have any concerns about the employee? Would the manager recommend the employee to other employers? Questions like these aren’t just potentially awkward, they can also create unexpected liability if mishandled.

The chief risk for a church that discloses information about former employees to their potential new employers is that the church’s feedback will result in the former employee not getting the job. This can be an especially tricky problem if the former employee was fired for incompetence or wrongdoing. How much can a church say without getting in trouble?

In California a principle called common interest privilege shields employers from being sued for making factual disclosures about former employees to their potential employers. The privilege provides that qualified conversations can’t be used as evidence in court to show that the former employer was responsible for the worker not getting the new job. The tricky thing about this privilege is that it doesn’t apply if the former employer makes disparaging comments, volunteers harmful information that isn’t requested, or otherwise acts in a malicious way to discourage the potential employer from making the hire.

Proving that a former employer acted out of “malice” can be difficult, but before assuming that the common interest privilege protects a church it’s important to remember that being sued is expensive even if the plaintiff has a flimsy claim. Employment lawyers often advise clients to stick to a simple script if contacted by other employers about an employee. It’s always fine to confirm a former employee’s title and dates of employment. California law also expressly provides that an employer is allowed to give an honest answer to the question, “Would you hire this person again?” Cal. Civ. Code § 47(c).

Going beyond these basics involves a degree of risk. Even an apparently glowing review of a former employee can unwittingly hurt his or her job application process and, in rare cases, raise questions about the church’s motives. Churches can benefit from examining this issue and crafting a policy or guidance manual for managers to follow when they get calls about former employees.

The Church Law Center of California advises religious and secular nonprofits on matters affecting their organization and operation. We are happy to help your church examine its potential risks as an employer and explore ways to manage those risks. Call us today at (949) 689-0437 or reach out to us through our contact page.

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