Can Employers Discuss Ongoing Misconduct Investigations in References?

When it comes to mentioning an ongoing misconduct investigation in a reference, several factors should be considered. Here is a comprehensive look at the considerations involved and the best practices.

Legal Considerations

Employers need to be cautious about what they disclose in references. Sharing information about an ongoing investigation can expose the employer to legal risks, especially if the investigation has not yet concluded or if the outcome is uncertain. This could lead to defamation claims if the information is damaging and later found to be unsubstantiated.

Company Policy

Many organizations have policies in place regarding what can be shared in references. Some may choose to refrain from commenting on ongoing investigations altogether to avoid legal complications. This underscores the importance of checking the specific policies of the organization in question.

Nature of the Investigation

The seriousness of the misconduct being investigated can influence whether it is mentioned. If the investigation pertains to serious allegations that could impact an individual's future employment, the employer might feel compelled to disclose it. However, this is often weighed against the potential for legal repercussions.

Substantiation

If the investigation is ongoing, it has not yet been substantiated. Employers typically reference confirmed facts rather than allegations that are still under investigation. Mentions of ongoing investigations might be seen as prejudging the situation, which can further complicate legal aspects.

Best Practices

It is generally advisable for employers to stick to objective facts in references, such as the employee's job performance, skills, and accomplishments. Discussing unresolved issues can unnecessarily expose both the employer and the former employee to legal risks.

In summary, while it is technically possible for an employer to mention an ongoing misconduct investigation, doing so comes with significant legal risks and is generally not advisable unless there are clear policies permitting it. Employers often prefer to avoid mentioning such matters until they are resolved.

Final Thoughts: It is rare for employers to provide detailed or negative information in a reference check. The process is typically brief and focuses on verifiable facts. Your former employer is not obligated to assist or provide detailed information about an ongoing investigation, and they are likely to avoid doing so due to legal concerns.

Moreover, your former employer cares chiefly about remaining compliant with legal requirements and minimizing risks. They may not invest significant time into the process, and even if they mention an ongoing investigation, it is usually in a vague manner, focusing on the fact that the investigation is taking place.

Be cautious with your own actions. If an ongoing misconduct investigation could lead to civil or criminal charges, it is best to be mindful of your future actions and ensure that you have legal protections in place.

You are in the clear as far as references go for now, but vigilance is key to maintaining a positive professional reputation and avoiding potential legal issues in the future.