checks should document every reference carefully and timely. Additionally, responses to
reference checks should be limited to information documented and contained in the
employee’s personnel file.
While Massachusetts provides limited protections to employers providing references,
many employers seek to limit the information they provide to try to minimize the risk of
liability or claims against them by former employees or others. However, because this
practice limits the usefulness of the reference to both a prospective employer and a former
employee, employers may feel pressure to provide additional information. The issue of how
to respond to a request for a reference is often an issue best addressed directly at the time of
the employee’s separation from the company if the circumstances of the separation make
such a discussion possible and appropriate.
A Limited or Conditional Privilege
Massachusetts law provides limited protection from liability for a former employer to
provide information to a potential employer regarding the employee and her job
performance. However, this privilege is not absolute and can be lost under various
circumstances, including the following:
excessive or unreasonably broad dissemination of the information;
release of information for an improper or malicious purpose;
release of information with a knowing disregard for the truthfulness of the
information that is shared.
Particularly in light of these limitations, caution should be used in the sharing of
information. Regardless of the circumstances, an employer will want to focus any reference
on matters strictly relating to the employee’s job and job performance. The employer should
avoid purely personal and non-job-related issues and should avoid information which may