Have a career question for Anne Fisher? Email firstname.lastname@example.org.
Dear Annie: Is it all right to try to warn a prospective employer that someone they’re thinking of hiring is really bad at his job? A colleague of mine is job hunting and has apparently given me as a reference (without my permission). This puts me in a really awkward position, because I know firsthand that he is constantly blowing off work, missing deadlines, and making the whole team look bad.
On the one hand, it will be nice to get rid of him, so I hesitate to say anything that would compromise his ability to get another job. But on the other hand, I feel I should be honest when asked and say something about what he’s really like. Your thoughts, please? — Rock and a Hard Place
Dear RHP: Your impulse to be candid is commendable, but you’d be smart to suggest to anyone who calls you that they need to contact the human resources department instead. Most companies have a formal policy requiring that any requests for references be handled by HR, and only HR — and even from that quarter, no information is usually forthcoming except dates of employment, titles, and (with the employee’s written permission in advance) salary data.
There’s a reason for that. The hyper-litigious times we live in have turned employment references into a legal hornet’s nest. You might be aware, for instance, that you can be sued for badmouthing someone to a prospective employer. But did you know that even a glowing reference could get you hauled into court?
“If a person you’ve praised causes some kind of serious damage at the next place they work, that employer could come after you for having ‘misled’ them by recommending him or her,” explains employment attorney Todd Wulffson, a partner at Carothers DiSante & Freudenberger who frequently gives seminars on this subject at Fortune 500 companies.
In some cases, your employer can be liable too, “but either way, you usually get fired, because the company wants to distance itself from you,” Wulffson adds. The upshot is that, “whether you like someone’s work or not, there is absolutely no incentive for you to tell the truth. In this area, no good deed goes unpunished.”
Employers know all this, of course, so you might wonder why they bother checking references at all. “They have to go through the motions,” says Wulffson. “If they don’t, and someone is later accused of serious misconduct, like sexual harassment or workplace violence, the company that hired them can be sued on the grounds that they were ‘negligent’ and should have checked the person’s background.”
The one place where the foregoing doesn’t really apply is at the corporate heights of the C-suite and above, where “the unwritten rules are different,” observes Jena Abernathy. A senior partner at executive recruiting firm Witt/Kieffer, she helps clients find high-ranking managers, board members, and CEOs.
“When we do our due diligence on a candidate, we’re not asking for a reference in quite the same way,” she says. “A chief financial officer who’s asked for his or her opinion of, say, an executive vice president is not going to refer the request to HR.”
In this rarefied club, people describe each other in terms that usually “try to give a balanced picture,” says Abernathy. Someone might say a senior executive is very good at, for instance, mentoring younger managers or conveying complex concepts to the board, “and then add something vague and tactful that signals a weakness or a flaw — like ‘to do his best work, may need support from someone with more operational experience.’”
But, until you get to the C-suite or above, you won’t need to know that kind of code. For now, just tell anyone who asks for a reference that HR handles all of those requests, and rest easy.
What if you work for a small company that doesn’t have an HR department? “You can always just decline to answer,” Abernathy points out. Depending on how you say it, an innocuous statement like, “I’d really rather not comment” can speak volumes.
Talkback: When someone asks you for a reference, how do you usually respond? Leave a comment below.
Watch more business news from Fortune: