When asked for a reference, legal worries have employers unwilling to do more than confirm employment
Checking with a previous employer is one of the best ways to get information about a potential hire. Picking up the phone and having a quick, casual chat with a former supervisor is an effective way to quickly separate the wheat from the chaff.
But more and more HR professionals are being frustrated in their efforts to get information on candidates as organizations adjust policies for fear of the legal ramifications of giving a bad reference.
The old thinking used to be if you can’t say anything nice, don’t say anything at all. But many employment lawyers are telling clients not to say anything at all even if HR or a former supervisor has glowing comments to make about a former staff member. Stuart Rudner, an employment lawyer with Miller Thomson, a Toronto-based firm, called this the “name, rank and serial number” policy.
But many HR practitioners aren’t following that advice because it’s not practical when it comes to making day-to-day hiring decisions and it’s not fair to employees. Here’s how three HR professionals deal with giving, and getting, references.
Town of Orangeville
Janice Stubbs, human resources manager for the town of Orangeville, Ont., a community of 25,000 people situated 80 kilometres outside of Toronto, said she runs into problems getting reference information from previous employers about 30 per cent of the time. And that number is growing.
“It’s increased lately, I think, because of the fear of lawsuits,” said Stubbs. “I don’t like to give a bad reference either, but at the same time I also think it’s unfortunate if employers can’t get information if there is someone you wouldn’t wish on your worst enemy as an employee.”
When she runs into the name, rank and serial number reference, the first step is to contact the candidate to see if they’ll provide another contact at the company. If she can’t get any detailed information from a previous employer, she said it doesn’t necessarily make the candidate less attractive.
“That’s why you have a probationary period,” she said. “The risk is always that you don’t hire someone who might have been your best employee as much as the risk of hiring somebody that you wish you’d never seen before. That’s why it’s important to have a good performance management program in place and monitor that person’s progress as part of the probationary period.”
When she gets a phone call looking for information on one of the town’s former employees, she said it depends on who is calling and who they are calling about as to what information she will give out.
But she will usually provide a reference consisting of the basics, including what the position is, how long they’ve been with the town and what that person’s strengths are. She can appreciate people’s reluctance to go into detail, but has always felt that as long as the information was objective and not designed to mislead, then that’s fair.
“If someone has atrocious attendance and the record showed that person had bad attendance, I think employers should be able to make that statement,” said Stubbs.
But on the other hand, she said personality conflicts can often end up in an unwarranted bad reference and that makes it difficult to know whether it’s a reflection on the candidate that should be held against the person.
“It would be nice if people could get along with everyone, but maybe the person they couldn’t get along with is an idiot,” she said.
Leanne Dillon, HR manager for Norfolk Co-operative, an agriculture co-operative based in Simcoe, Ont. with 80 employees, said job candidates lose out when previous employers won’t go beyond the name, rank and serial number reference. She recalled a recent example where she was stonewalled and that person missed out on an interview. The candidate had an impressive resume and cover letter, but Dillon couldn’t get all the information she wanted from one of the previous employers because it wanted a signed waiver from the candidate stating it could provide a reference.
“I may or may not have hired that person,” said Dillon. “But I didn’t have the time to pursue it, so that person lost out on an interview because I couldn’t get a second reference and I didn’t have time to chase down them or the previous employer for a waiver.”
The waiver, a document signed by the candidate and the previous employer, is something Dillon is starting to see more of. Some candidates have even attached these types of waivers to their resumes, something Dillon finds appealing.
“From my perspective, as an employer, I appreciate it,” she said. “Because then I know they’ve taken the time to lay the groundwork. They’re thinking ahead and they’re creating the path of least resistance to facilitate what I need to do. I know it’s okay to contact those employers and that they’ve already been given permission to discuss things. That tells you a lot about a person right there, just the fact that they took the time to put it on there.”
When phoning previous employers, there are a number of things she looks for including:
•was the candidate punctual?;
•was the candidate clean, tidy and professional?;
•was the candidate pleasant and professional in her conduct and mannerisms?; and
•did the candidate get along with peers and subordinates.
When employers call her looking for information about a previous Norfolk employee, she said she is guarded in what information she will give outside of the name, rank and serial number information
“I try to avoid giving anything that I don’t have to give,” said Dillon. “If, say, they want reasons for the person leaving, I prefer that the (previous employee) either contact me or give me permission, preferably in writing, to discuss stuff like that. It’s very easy and no problem to say good things about people — no one ever has a problem with that. But when it starts swinging the other direction, I just try not to go there.”
She talked about a recent situation where she received a call from an employer looking to hire a previous Norfolk employee as a driver. But that particular individual wasn’t employed by Norfolk as a driver — he was with the company in a different role.
“I was able to get around it by confirming that yes, he had worked for us,” she said. “Yes, he had access to a vehicle and at times was required to drive them but was not employed as a driver. Then it was very easy to go and say during those incidents where he was required to drive, there were no recorded cases on the commercial vehicle operator’s report. But I did not go into how frequently he drove or whether he sped.”
Sandy MacDonald, HR manager for Hasbro Inc., a Quebec-based toymaker with 110 employees, said she hasn’t run into many problems getting references on a potential hire. And when she does, she can usually get around the wall of silence with a few well-placed questions.
“Sometimes they’ll say, ‘This is our policy, and this is what we do, and I can appreciate that,” said MacDonald, at Hasbro’s Mississauga, Ont. offices. “But, you know, just say yes or no — were there any problems with this employee? I find most people are still willing to give a lot of information.”
She has a standard checklist she uses when checking employer references including:
•length of service;
•relationship of the reference to the candidate (supervisor, co-worker, colleague or direct report) and how long they worked together; and
•description of candidate’s past performance;
She also asks references to rate the candidate’s analytical skills, initiative, assertiveness, problem-solving, flexibility, adaptability and time management as either excellent, good, fair or poor. She finishes up by asking if they would rehire that person again and if there is anything she didn’t ask that she should know.
If she can’t get the information she’s looking for because an employer has a name, rank and serial number policy in place, it could make her less likely to hire that candidate.
“It’s hard to call because it could be their policy or it could just be their policy for this particular person,” said MacDonald. “You take that information with your gut feeling and all the other information you’ve gathered and put it in the big melting pot and say, ‘Okay. What have we got here?’”
When employers phone her looking for information on a former Hasbro employee, she’s usually forthcoming with information, particularly if she can give a good reference.
“If they’ve been a really good employee and a great performer, then we might expand on that a little,” she said. “But you don’t want to become too glowing either, because that person could be going into the wrong position and not be quite so glowing. If we say we’d gladly rehire this person if that were the case, we might mention that too. It really becomes situational.”
She will hesitate a bit if that employee hasn’t been a strong performer, but leaves the door open to providing more than just the name, rank and serial number reference.
“I’m really a strong believer that a lot of times a poor performer has a lot to do with the company, with the position and where they are in their lives at that moment in time,” she said. “Even if I terminate someone, I will always give a letter of reference and just say that it wasn’t a good fit. Right or wrong, I think there are very few circumstances where that isn’t warranted. I try to do the best by the person — we all have to go to work somewhere.”
The legal point of view
Stuart Rudner, of Miller Thomson, said the most important thing employers can do is to have a specific policy and ensure it is followed consistently. Refusing to provide more than the name, rank and serial number information hasn’t landed any companies in legal water yet, but he said the possibility does exist. An employee who doesn’t get a job because a former employer refused to provide a detailed reference beyond the name, rank and serial number could potentially turn around and sue his previous employer.
“There is a possibility of a claim,” said Rudner. “But I would say that if an employer, as a policy, does not give any substantive references, if all they give you is the name, rank and serial number and they do that in every case for every employee, it’s pretty unlikely that a claim could be made against them in an individual case.”
He cautions companies about giving out warm and fuzzy references for star employees and shutting up about poor performers.
“I’ve seen companies do this, where they’re generally happy to give out a positive reference but where they have an employee that they don’t want to say anything good about, they just won’t say anything,” said Rudner. “In essence you are, by implication, giving them a negative reference and that I could definitely see opening up the possibility of a claim.”
Another area of concern for HR is handling references for an employee who is suing the company for wrongful dismissal.
“If the employer wants to say the employee has not mitigated his damages by finding a new job, arguably the employee could say, ‘Well, look. I haven’t found a new job. But that’s because you won’t say anything good about me,’” said Rudner. That could lead to a lengthening of the notice period where a case is already before the courts.
But the best defense for companies is to ensure a consistent policy is applied.
“That’s the best way, to be able to say, ‘Look. We have never in our X number of years of existence given out a substantive reference. All we do is confirm the working terms.’”
For more information about the legal arguments surrounding whether or not to provide references to employees, click on the "Related Articles" link below.