The Supreme Court just added another barb to the already thorny issue of giving references for ex-employees.

That’s why we’re taken this opportunity to look at that and other key cases on references. Now we can bring you the most up-to-date rulings on:

• when not to give a reference
• when you have to give information, and
• how you can provide more than just name, title and dates of employment without getting sued.

Whenever employees leave after filing discrimination or accuse you of wrongful firing charges against your firm - watch out.

In Robinson v. Shell Oil, the U.S. Supreme Court decided that retaliation protection extends to your ex-employees, too. Say anything that convinces a company not to hire your ex-employee when that employee has a discrimination case pending against you. And you could wind up in court on retaliation charges.

In this case, the court didn’t even look at what Shell actually said about Robinson, who had sued claiming his dismissal was racially motivated. The more fact that company officials said something negative shortly after he filed charges was grounds to sue.

That’s why it’s best not to say anything in these cases: it’s no-win situation. Employees can easily produce the minimum evidence needed to bring a retaliation claim to trial (see story. P.4). And research shows that once companies land in front of a jury, they have only a 20% chance of winning their case.

The Allstate case - decided last year shows you can’t always keep mum, however, Allstate was held liable for not telling another company that its former employee, Paul Calden was let go because he used to bring a gun to work.

One day Calden brought his gun to his new job at fireman’s Fund and killed three co-workers. Victims’ relatives then sued Allstate for not disclosing Calden’s violent tendencies.

Clearly, the chances your ex-employee will kill someone are slim. But that case opens the door for similar suits.

If you fire an employee because that person caused serious problems - such as threatening or harassing co-workers, or stealing funds - you’re obligated to tell other companies, the courts say.

In most cases, ex-employees who want references weren’t dismissed under a cloud of problem behavior. And they aren’t charging you with harassment or racial bias, either.

While you know the safest route is name, title, and dates of service, you may want to provide other companies with more substantive information. And if you’re careful, you should be able to do that and protect your firm.

Here’s how to do it:

• Don’t offer information that’s not written in a personnel file.
• Stick to uncontestable facts. For instance, "Her file shows she made $10,000 in sales last quarter. Her goal was $11,000." Avoid judgmental terms like. "She was an average sales rep." In fact, you shouldn’t share performance ratings like "meets expectations." Those are a manager’s subjective evaluation.
• Offer only information the person specifically requests. Even uncontestable facts can get you in trouble if the other company didn’t ask for that info. You may get nailed for stepping on ex-employees’ rights if you release information about them without good reason - even if it’s true. Ex-employees can claim that releasing the unsolicited information served only on purpose - to damage their reputation.