How to Write a Reference Letter for a Former Employee (Without Getting Sued)

Writing an employee reference letter for a former employee and don’t know what you should say? Here’s how to make sure your letter of recommendation doesn’t get you sued.

Forget for a moment the legal pitfalls you can see. Let’s look at one you might not know exists. It’s hidden in something you may have done multiple times in the past. If you’re not careful, your legal woes could come from multiple sources as a result of this.

How often have you written a letter of reference? Most of the time, writing that letter comes with little risk. Maybe somebody you know applied for a scholarship and asked you as a present or former employer to write a letter for consideration by the committee? You have little to worry about, but what if you offer to write an outgoing employee a letter of reference for use in a job search? That’s when you have to cover yourself.

We asked a few attorneys to weigh in on how to protect yourself when writing a reference letter.

Understanding the Purpose of a Reference Letter

A reference letter is a powerful document that serves as a recommendation for a former or current employee, typically written by a colleague, manager, or supervisor. Its primary purpose is to attest to the employee’s skills, accomplishments, and character, providing valuable insights to potential employers, academic institutions, or other organizations. A well-crafted reference letter can significantly influence an individual’s career prospects, making it crucial to understand its purpose and importance. By highlighting the employee’s strengths and achievements, a reference letter can help them stand out in a competitive job market.

Benefits of Writing a Reference Letter

Writing a reference letter can offer numerous benefits for both the employee and the writer. For the employee, a strong reference letter can:

Enhance their job prospects and increase their chances of getting hired
Provide a competitive edge in the job market
Showcase their skills, achievements, and character
Demonstrate their value and potential to future employers

For the writer, crafting a reference letter can:

Strengthen their relationship with the employee
Enhance their professional reputation
Provide an opportunity to support the employee’s career growth
Demonstrate their commitment to the employee’s success

By taking the time to write a thoughtful and detailed reference letter, you can play a pivotal role in helping a former employee advance their career while also reinforcing your own professional standing.

Types of Reference Letters

There are several types of reference letters, each serving a specific purpose:

Employment Reference Letter: Written by a former employer or supervisor to recommend an employee for a new job opportunity. This type of letter focuses on the employee’s job performance, skills, and professional achievements.
Character Reference Letter: Written by a personal acquaintance, such as a friend or family member, to attest to an individual’s character and personal qualities. This letter highlights the person’s integrity, reliability, and other personal attributes.
Academic Reference Letter: Written by a teacher, professor, or academic advisor to recommend a student for academic programs or scholarships. It emphasizes the student’s academic performance, potential, and contributions to the academic community.
Professional Reference Letter: Written by a colleague or supervisor to recommend an individual for a professional opportunity or certification. This letter underscores the person’s professional skills, work ethic, and suitability for the specific role or certification.

Understanding the different types of reference letters can help you tailor your writing to meet the specific needs of the recipient.

Preparing to Write a Reference Letter

Before you start writing a reference letter, it’s essential to prepare thoroughly. Here are some steps to guide you:

Gather Information: Collect details about the employee’s skills, achievements, and character. This information will form the basis of your letter.
Review the Job Description: Understand the employee’s job responsibilities and how they performed in their role. This will help you provide relevant examples.
Identify Specific Examples: Think of specific instances that demonstrate the employee’s skills and qualities. These examples will make your letter more compelling.
Understand the Purpose: Know the purpose and requirements of the reference letter. Whether it’s for a job application, academic program, or certification, tailor your content accordingly.
Obtain Consent: Ensure that you have the employee’s consent to write the reference letter. This is not only courteous but also necessary for legal and ethical reasons.

By preparing adequately, you can write a reference letter that is both accurate and impactful.

Writing an Effective Reference Letter

To write an effective reference letter, follow these tips:

Use a Professional Format and Tone: Start with a formal salutation and use a professional tone throughout the letter.
State the Purpose Clearly: Begin by stating the purpose of the letter and your relationship with the employee. This sets the context for the reader.
Provide Specific Examples: Use specific examples to demonstrate the employee’s skills and qualities. This makes your letter more credible and persuasive.
Highlight Achievements: Emphasize the employee’s achievements and accomplishments. This shows their value and potential to future employers.
Be Concise and Clear: Use language that is concise, clear, and free of jargon. This helps ensure that your message is easily understood.
Proofread Carefully: Review the letter for any errors or inconsistencies. A well-proofread letter reflects professionalism and attention to detail.

By following these guidelines, you can write a reference letter that effectively supports the employee’s career aspirations while protecting yourself from potential legal issues.

Make sure the employee reference letter is consistent with the employee’s personnel file

Consider this scenario: You have an employee who is average at best who you plan to let go. They weren’t a detriment to the team; you just want to go in another direction. Throughout their time at your company, you’ve kept a record of each time you talked to the person about issues like lateness, poor performance, and their job title.

You tell them that you’re letting them go and offer to write a recommendation letter for them. You leave out the negatives and focus on the positives, giving the person a better chance of finding a new job quickly. Then, a few weeks later, you get notice that the ex-employee is suing you for wrongful termination.

Washington, D.C., attorney Tom Simeone says, “…being a nice guy and providing a good reference for a not-so-good employee can come back to haunt an employer by contradicting the evidence they may have justifying their termination or sanctioning of the employee.”

In other words, the employee could say, “If I was as good as you said I was in the reference letter, why was I fired?” If the suit is filed, the ex-employee’s attorney will likely ask to see the employee’s personnel file. If the letter and the file don’t align, that could be bad news for you.

The new employer could sue you, too, for a former employee

It’s not just your former employee who could have it out for you; it could be their new (or most recent ex-) employer. If you write a letter that isn’t entirely accurate and the employer hires the person based on your reference letter, you could be sued if the contents of the letter turn out to be false or misleading. Simeone says, “The firm to whom an employer provides a reference may have a claim if the information is incorrect. While it may not amount to fraud — since that requires intent to defraud and mislead — it could lead to negligent misrepresentation, which only requires negligence or a failure to act reasonably.” Additionally, always include accurate contact details to facilitate any necessary follow-up inquiries.

A No-Win Situation

If you provide information in your letter that is false, such as exaggerating the employee’s skills, the former employee could sue you for defamation. For that reason, San Diego Attorney Samuel Brotman says, “You generally want to avoid recommendation letters for employees that were either fired or laid off.”

On the other hand, if you refuse to write a letter, that could be a problem, too. Attorney Moseley Matheson of the North Carolina-based Matheson Law Office says, “A former employee may also raise a claim for not providing a reference at all if they can demonstrate it has impeded their ability to find employment in that field.”

Confirm only the basics in the reference letter

The best and only way to reasonably protect yourself when writing employee reference letters is to make sure all of the information you provide is based on verifiable facts. Also, don’t provide any more information than is necessary. Chicago-based attorney Pamela Belyn says, “The general rule is to only confirm the basics, dates of hire, title, last salary, eligibility for rehire (yes or no). It is the cleanest way to avoid future litigation.”

Whatever you commit to paper (or email) becomes evidence. Don’t speak of the employee in a personal capacity, and keep the reference short.

The law isn’t universal

Wouldn’t it be nice if every state operated under the same rule of law? It doesn’t, and that’s why if there is any question about what you should include in a reference letter, consult an attorney in your area. The above represents basic guidelines that are applicable to most state statutes, but nothing beats the advice of a trusted attorney who knows your individual case.

This article provides general information only. If you need specific legal advice, you will need to contact an attorney.

Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.