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Employment Reference: When Should I Consult a Lawyer?

Finding a new job can be a challenge. One crucial key to securing interviews with future employers is often the employment reference from the previous job. Employers typically review the employment reference carefully to assess whether the applicant is a good fit for their company.

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Obtaining a good employment reference from your former employer is therefore extremely important. It becomes all the more problematic when the reference is inaccurate, incomplete, or does not reflect the truth.

For many employers, tasks like drafting a personalized employment reference often fall by the wayside. This happens despite the fact that employees have a legal right to a proper and accurate employment reference.

Employees do not have to accept such a situation. We’ll show you what steps you can take to secure a fair and proper employment reference.

Overview:

  1. When Do I Receive an Employment Reference?
  2. What Should Be Included in an Employment Reference?
  3. How Quickly Must an Employer Issue an Employment Reference?
  4. What Do the Phrases in My Employment Reference Mean?
  5. When Should I Have My Employment Reference Legally Reviewed?
  6. Conclusion
  7. FAQ

1. When Do I Receive an Employment Reference?

Every employee is entitled to receive a written employment reference upon termination of their employment. It does not matter whether you were employed full-time, part-time, as a working student, in a mini-job, on a fixed-term or permanent basis—the legal entitlement applies to all employees (§ 630 BGB, § 109 GewO). Interns are also entitled to request an employment reference.

Depending on the type and duration of the employment, as well as the timing of the issuance, different types of employment references may be covered by this entitlement:

  1. Simple Employment Reference: For particularly short employment periods (e.g., internships), a simple employment reference is typically issued. This type of reference does not include information about qualifications but merely confirms the role performed within the company.
  2. Qualified Employment Reference: For most employment relationships, employees are entitled to a qualified employment reference. In addition to listing the job duties, it also evaluates performance, qualifications, and social behavior. Thus, it not only confirms the role but also describes professional and personal aptitude and development.
  3. Interim Reference: As the name suggests, an interim reference is issued during ongoing employment. It can also be either simple or qualified and is often provided to employees who, for instance, are going on parental leave or transitioning to a leadership position or another department.

An employment reference is typically issued when the employment relationship ends, such as through termination by either party or when the contract naturally expires.

The situation is different for an interim reference: Employees are entitled to an employment reference even during ongoing employment if there is a legitimate interest. Such cases usually arise before parental leave, during a position change, a company transition, or when a new supervisor takes over.

2. What Should Be Included in an Employment Reference?

When drafting an employment reference, clear and comprehensible wording is mandatory. A simple employment reference must include the following details:

  • Details about the employee
  • Details about the employer or company
  • Information about the type and duration of the employment relationship
  • Description of the role and responsibilities
  • Reason for termination of employment (only with the employee's consent)
  • Location, date, and employer's signature

Employees should ensure they receive an original written reference, meaning it must be in paper form. A copy sent electronically, such as via email or fax, is not permitted. Additionally, the signature must be an original.

A qualified employment reference also includes details about the employee's core competencies, performance, and qualifications. This is often where disputes arise between employers and employees, as this section involves an evaluation.

The evaluation in an employment reference covers the following aspects:

  • Work achievements
  • Work methodology
  • Work commitment
  • Work capabilities
  • Leadership skills (for managerial employees)
  • Professional expertise
  • Overall assessment

In addition, employment references often include an evaluation of how the employee interacted with others (referred to as social behavior). This includes relationships with colleagues, supervisors, or subordinates, as well as individuals outside the organization, such as clients, patients, guests, business partners, or suppliers.

Attention:

What employees may not immediately notice can catch the eye of HR departments. For example, it is customary in an employment reference to first address behavior toward supervisors, then toward colleagues, and finally toward customers. If this order is not followed, it may indicate that the employer has a concern and is subtly signaling this "between the lines."

3. How Quickly Must an Employer Issue an Employment Reference?

Although employees are entitled to an employment reference, this does not mean that employers are required to issue it automatically after a termination. On the contrary, employees must actively assert their right and formally request the employment reference from the employer.

Such a request should always be made in writing so that the employee can later prove that they requested the reference in a timely manner. Only then is the employer obligated to issue the employment reference.

Employees also do not have unlimited time to retroactively request an employment reference: the entitlement expires three years after the end of the employment relationship. However, the period begins at the end of the year in which the employment relationship ends.

Example: An employee who resigns on January 31, 2022, can claim the right to an employment reference in court until December 31, 2025. Therefore, the determining factor is the calendar year in which the resignation occurred, not the exact date of the resignation.

However, the entitlement may expire earlier if the employment or collective bargaining agreement includes a corresponding provision. Employees should always check this or seek legal advice.

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Learn more about what to do in case of termination in this article.

4. What Do the Phrases in My Employment Reference Mean?

According to the Federal Labor Court (BAG), a qualified employment reference must be truthful, complete, and supportive. The latter often results in employers using very polite and positive language in employment references, even if the actual evaluation tells a different story.

For employees, this means that a "bad" reference may not be immediately distinguishable from a good one. Certain phrases have become standard, which may mean something different than they initially seem to imply.

HR departments are trained to recognize which phrases in a reference signal a "bad" evaluation. Employees can use the following list to get a general idea. However, in case of doubt, they should consult an employment law attorney.

What the Phrases in an Employment Reference Mean:

Very good performance"always to our fullest satisfaction"
"always extremely reliable"
"always with the utmost care"
Good performance"always to our full satisfaction"
"always very reliable"
"always with care"
Satisfactory Performance"always to our satisfaction"
"always reliable"
"careful and satisfactory"
Adequate Performance"to our satisfaction"
"proved to be reliable"
"was motivated"
Poor Performance"overall to our satisfaction"

5. When Should I Have My Employment Reference Legally Reviewed?

Employees should always carefully review their employment reference themselves first. Check whether the information is accurate and whether the job description matches reality. Job descriptions can provide useful guidance, but you are the best judge of your primary responsibilities.

Disputes usually arise not from the general information in the reference but from the evaluation of the employee's qualifications and performance. If you are dissatisfied with your reference and expected a better assessment, you can raise this issue with your employer. However, the question remains how likely it is to succeed.

At the same time, it is often challenging to prove what your actual performance was. To improve your chances of having the reference amended, it can be advisable to have it reviewed by a lawyer and, if necessary, take legal action. Sometimes, a letter from a lawyer can work wonders. If the employer refuses to issue a reference or delays the process, an attorney specializing in employment law can also provide effective assistance.

Do not underestimate the importance of an employment reference for future applications and career opportunities. A satisfactory, adequate, or even poor reference can be extremely off-putting to potential employers and significantly reduce your chances of landing your dream job. To avoid this, consulting a lawyer can definitely be worthwhile.

Are you looking for an employment law attorney in Munich?  

Feel free to schedule a short-notice appointment at our law firm. You can reach us at info@kern-peters.de or 089 21 55 2286

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6. Conclusion

  • Every employee is entitled to an employment reference when their employment relationship ends.
  • There are distinctions between a simple employment reference, typically issued for very short employment periods, a qualified employment reference, which not only describes the role but also evaluates performance, qualifications, and social behavior, and an interim reference, which can be issued during ongoing employment.
  • An employment reference must be truthful, complete, and phrased in a supportive manner.
  • The employer is obligated to issue the reference upon the employee's request; however, the entitlement expires after three years.
  • Phrases in an employment reference may contain hidden messages, making it advisable to have the document legally reviewed by an employment law attorney.

7. FAQ

When Am I Entitled to an Employment Reference?

Every employee is entitled to receive a written employment reference upon termination of their employment. It does not matter whether you were employed full-time, part-time, as a working student, in a mini-job, on a fixed-term, or permanent basis—the legal entitlement applies to all employees, including interns.

What Is the Difference Between a Simple and a Qualified Employment Reference?

A simple reference merely confirms the role performed within the company, while a qualified reference also evaluates performance, qualifications, social behavior, as well as personal aptitude and development.

What Can I Do If I Am Dissatisfied With My Employment Reference?

It may be beneficial to have your employment reference legally reviewed and request changes from your employer. If your employer is unwilling to make adjustments, you can take legal action with the assistance of an employment law attorney.

How Quickly Must My Employer Issue an Employment Reference?

Upon request and within a reasonable timeframe, as the entitlement expires after three years.

Picture credits: © karelnoppe | PantherMedia

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