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Comment by JohnJamesRambo | Hacker News Reader

If they call Blizzard checking references, does Blizzard say “we fired them for sexual harassment.”

Not sure if its the same in the USA, but in Europe there are massive legal liability issues to giving a negative reference - most places give no reference or a standard set of terms because of this

The U.S. Bill of Rights [1] protects giving negative references.

[1] https://en.m.wikipedia.org/wiki/United_States_Bill_of_Rights

which one protects giving negative references

Personal references are protected, to the extent that liable and slander laws would apply.

Any HR person / lawyer will tell you providing a negative review of an employee, let alone with amount of detail, opens you up to liabilities that aren't worth it.

As an employer, I've been told that, if called, I should only provide the date a person started with the company, the date a person left, their starting and ending salaries (murky now given salary history laws) and whether they'd be eligible to be re-hired.

I ask any employee we fire for cause not to list us as a reference.

Will they give you a magnitude attached to those liabilities? Anybody can falsely sue for defamation, so you need an average cost value beyond the mere possibility of lawsuit to get a true representation of the problem.

The cost may be minimal, but the value of giving a bad reference is zero.

> whether they'd be eligible to be re-hired

"Bob isn't eligible for rehire. Wait, I think the line cut out a bit there, I said Bob isn't eligible for rehire. Just wanted to make sure you got that: Bob is not eligible for rehire, no way, no how, nosirree."

Keep in mind: the judges that interpret the law are humans, not computers.

I try not to even have a "tone" when I saw that. Completely neutral. No implications.

That's not quite how it works. In practice, in the US, liability comes not so much from giving a positive or a negative review, but from giving an incomplete one. This is most apparent as a result of giving a positive review and leaving out the bad bits. In this case, you might be liable for the negative consequences of hiring someone based on your positive review.

For an extreme example, see Randi W. v. Muroc Joint Unified School Dist [1]. In that case, the plaintiff sued several school districts for fraudulently or negligently providing positive recommendations for a teacher who ultimately sexually assaulted her. The California state Supreme Court held that the school districts were liable because there was a substantial, foreseeable risk of physical injury to a third-party resulting from the misrepresentations.

For this reason, it is common practice for businesses to decline to provide a review and instead simply confirm a prior employment relationship and the dates of the employment.

[1] https://law.justia.com/cases/california/supreme-court/4th/14...

That’s a great point, but at least as far as negative references go, you have libel/slander law with robust free speech protections. It’s nothing like Europe.

Would be more useful if you pointed out which part of the Bill of Rights provides this protection.

Impossible because it doesn’t

The 1st amendment.

might help to stick to the countries laws you should be understanding

What in the world? What is the point of a reference if it can only be good?

hardly anybody actually asks for references now because they most likely won't get anything interesting out of it. they just do employment verification and that's it

What effect does that have on hiring? Are companies more averse to giving someone a shot since they can’t get information about their experience?

Law of unintended consequences, perhaps?

Specifically which parts of Europe? It's a big place, and I have given negative references with no fear of liability. And that includes across EU borders, including the UK.

In Germany I’ve read recommendations range from meekly positive to very positive, and that encodes the actual recommendation.

But just like the UK press can't describe anyone as 'tired and emotional' anymore these days, because that particular euphemism for 'drunk' has become transparent, many of the traditional German euphemisms for sub-par work have been attacked by the courts.

I'm currently in the UK, and at least here I've been told by legal that a negative reference can lead to massive issues in front of an Employment Tribunal, and that it's effectively not worth it when we can just decline to give any reference at all.

On the flip side, a reference has an implicit duty of skill and care to both the former employee and the person asking for the reference, so an overly-positive reference can also lead to legal liability from the person asking for the reference.

In some regulated industries the content and form of references is also regulated as well, for example see pages 11 and 31 of https://www.handbook.fca.org.uk/handbook/SYSC/22.pdf

(None of this is legal advice)

Many companies I consult for in the US won’t provide a negative reference but instead answer all reference questions with: “I can confirm that they were employed here from MM/YY to MM/YY”. If you hear that it means it didn’t end well.

Otherwise, many managers are happy to give a positive reference.

Huh. My company won’t do anything more than confirm date of hire and salary.

You could probably get a manager to give an informal reference “off the books”, not on company time.

In my experience these positive references are either a small quote taken from a LinkedIn reference, or a quick phone call.

If you help your manager succeed, they will almost always be happy to help you out with a good word. It’s only a few minutes so no one is worried about it being on or off the clock in my experience.

They confirm _salary_ ?! How on earth is this not private information? When negotiating salary for a new job, the employer will sometimes try to coerce you into giving this info in order to low-ball you and now all they have to do is call your former employer... wtf

And yet I'm sure they try to keep anyone still employed from revealing their current salary to their coworkers.

Hopefully not in CA.

https://www.shouselaw.com/ca/labor/discrimination/salary-his...

> California Assembly Bill 168 took effect in October, 2017. This legislation bars employers from asking job applicants about salary history when applying for a position.

I guess asking a reference isn’t quite the same as asking the applicant, but still it’s pretty inappropriate (if not illegal) and I’ve never heard of a past company revealing past compensation information.

We had a strict HR policy of “name, rank, and serial number.”

We were only allowed to confirm dates of employment, and were required to direct all referrals to HR.

Our HR was run by lawyers, and was very tight about all kinds of policies.

In one case, I once had to lay off a couple of employees. HR policy demanded that I do a “perp walk” to HR, before telling them in an HR ambush. I felt that this was unnecessarily humiliating and dehumanizing (I was right. One teared up), and informed them in individual sessions in my office. HR wrote me up for that. They were technically correct, as this gave the employees the chance to cause havoc (except that I immediately walked them up, after informing them. HR was really concerned that I would say something legally liable -I did not). A big part of my job, as a manager, was to act as a buffer between my employees, and a rather coldhearted and dishonest HR department.

I will say that the company I worked at, had a very diverse workplace (below the Executive Suite), and harassment was not ever an endemic problem (of which I am aware). I know of a small number of instances (over 27 years), where people (men and women) were fired for inappropriate behavior.

There was definitely a “the rules only apply to the little people” thing going on, but not in any really significant way. HR tended to look the other way at the C-Suite doing things we mensch weren’t allowed to do, but they kept it quiet.

One of the things that I most enjoyed about leaving the company, was going to my former employees’ and coworkers’ LinkedIn pages, and giving them the glowing references they deserved.

The American culture of layoffs always surprised me. In Poland, for a typical work contract, the law mandates 1-2 months of layoff time. That is, the layoff decision is given two months in advance, but you keep working for those two months. Also, there are no surprise "security will escort you to the door where you can wait for your personal things" layoffs. I guess because people don't get taken by surprise with a layoff and are given enough time to find a new job, there is much less concern and acts of employee retalation

In the US, it is usually an ambush. I think that union shops can negotiate something like what you describe.

Here's an old Dilbert comic, that summarizes it: https://dilbert.com/strip/2002-04-25

Europe is a big place with lots of different cultures and regulations.

Eg in Germany, employers are both legally obliged to give a reference and to make it not-negative. It's a weird place.

Which they basically circumvent, by using a language where a reference which is just good and not extremely good means it's a bad reference.

Courts have started catching on and are punishing the most well known euphemisms, too.

It has become standard (at least outside of tech) for companies to only confirm dates of employees, without further comment on a (former) employee's tenure.

The goal is generally to avoid litigation in the event that any such comments could be construed as libel or as interfering with the employee's future employment...and with good reason, since a lawsuit over a negative reference for anything other than a for-cause termination (such as sexual harassment) is generally very costly to defend against even if the former employer would win on the merits.

In general, employers just confirm the dates of employment. Saying more than that potentially opens them up to legal liability.

The will not. They will confirm start and end dates, ask if the termination was voluntary, and may ask if they would hire them again in the future.

And even some 'voluntary' termination might be a case of somebody being managed out or asked to leave.

definitely not. If they're smart they will only provide confirmation about whether or not the person worked there, what their title was, and maybe if they would hire them again. but that's it

Blizzard won't say that, too much liability.

What does it mean that there is too much liability? What liability do you have for saying true things?

"That person was fired because an investigation conducted by our company suggested they participated in sexual harassment."

why say anything when you can just say nothing. they don't care about it that much as long as the offender is gone now

Because no corporate investigation has to meet the same standard as a court of law. You can fire someone if you think they did something wrong. But when you make statements, it's possible the employee will claim it is libel and you will suddenly need to prove their misconduct at a higher standard in a court of law.

IANAL, but basically it's not worth it. The company already has what they want: Not working with that employee. Anything past that is unnecessary risk.

Imagine that a previous employer said something bad about you during a reference check, and what they said wasn't true, and it caused you to lose a potential new job. You'd definitely have a good reason to sue them.

Now, imagine the same scenario, except what your previous employer said was true. But you sued them anyway.

In both cases, you have the ability to sue. In both cases, unless there is some very strong and obvious evidence against you, a judge and/or jury might take your side.

From the perspective of one of your former employers, it's just not worth the risk to give details about why someone was separated from a company.

The liability to Blizzard or the firing company is that the fired employee sues Blizzard, “I did not get these jobs because they tarnished my name to potential employers.”

People exaggerate the amount of risk for this kind of thing, but the benefit to the company giving the bad reference is also essentially zero.

I agree with both your points. To be honest if the same signal is sent by merely confirming employment dates but not literally disparaging the former employee, I fail to see how there’s any additional legal protection. The implication is tortious interferus in both cases.

That's why many companies don't give any details at all, whether positive or negative. This way your line of argument doesn't apply; not from a logical point of view and also not from a legal point of view: no signal is sent at all.

I agree with you too.

For the sake of my argument, I was conjuring the scenario where companies give either positive recommendations or bare minimum ones.

That opens Blizzard up to litigation by the fired employee. At least more than not saying anything.

Even if you think something is true, someone else might contest that, and ask a court to decide. Court battles are costly and time consuming.

> What does it mean that there is too much liability? What liability do you have for saying true things?

Problem is, in many countries, it's not a fact until a court has made a judgement.

Bearing in mind that the accused employees are technically and legally innocent, you are introducing a few problems. First, the disadvantages of calling these people criminals:

1. They can (and probably will win) sue you for calling them a criminal.

2. The resulting news that a court found against you is a bigger problem. You called someone a criminal, they sued you for it and won. Now you have to deal with the fact that as far as the public goes, you just fired and shamed innocent people.

3. Finally, after the news gets out, all the employees who were laid off in the same round and with same accusations now have legal precedent to challenge your accusations of criminality. And due to precedent, they will almost surely win.

Now, the disadvantages of giving only their start/end dates and job title when called:

[uhh, I can't think of anything ...]

It all boils down to "there is some risk in badmouthing them" vs "there is literally no risk, 0% risk at all, is saying nothing about their behaviour".

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