As we all know, when an employee leaves an organization, it isn’t always on a positive note. Through a resignation or termination, the employment relationship ends, positive or negative, good or bad. As previous employer’s we are conflicted on what information to provide about the current or former employee during the reference or background checking processes. Should we tell the new organization the employee was terminated or a poor performer? Should we tell the new organization that the employee caused conflict and drama or didn’t show up for work on time, missed days, quality issues, etc.? What if there was a workplace violence issue? The standard answer for most organizations is; date hired, last position held and last day worked. What if the new organization questions you, the old employer if the person is eligible for rehire or if you would hire them again? What do we do then? In many situations, these are not easy questions to answer.
The five considerations when giving an employment reference:
- Applicable state legislation: Many states now have legislation that gives employers “qualified immunity” when we as former employers are providing reference information. “That means you’re protected from civil liability if you’re responding in good faith-in other words, without knowingly providing false or misleading information or acting with malicious intent.”[i] What does that mean for us in New York State? “Currently (2005 article), New York employers have a qualified privilege defense available to them when they provide information regarding an employee or former employee’s character…New York has not adopted a reference check immunity law…reference check immunity laws do not protect employers against claims that negative job references were given in retaliation for protected activity under discrimination laws.”[ii] As of 2005, there were thirty states that had adopted reference check immunity laws, which vary widely throughout the country. If you have former employees moving to another state, know the state laws prior to providing reference checks or additional information about the employment relationship.
- Control the Information: The Society of Human Resource Management recommends that we as employer’s limit who can and cannot give references and what information can be provided. It should be the responsibility of the HR professional, manager, general manager, office manager, business owner, etc. Someone designated with authority that can speak to the employment relationship. This will ensure consistency in the process throughout the organization.
- Consistency in the Process: Reference requests should follow the same process for all current or previous employee’s. “All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee.”[iii] Companies are now outsourcing the reference check processes, which ensures consistency. However, this provides limited information for the future employer.
- Relevant Facts: Do not give opinions about the employee’s suitability for a prospective job or new position. Even if the employee was an underperformer at your organization, they could be a great fit for the new position. Use only documented evidence on job performance, when sharing with the prospective employer. Less said, better defended!
- Employee Permission: It is recommended that all job candidates complete an application form that includes a release for employers from which they have added as a reference. This form should be consistent across the organization, to ensure equity and avoid discrimination charges. I recommend obtaining this prior to releasing any information about the current or former employee.
As leaders, we need to ensure we are consistent when providing references for all our employee’s; past, current and future workforce. Updating policies, procedures and processes will provide the foundation on which we can build a consistent process for reference checking and verification. Documenting work performance and accurate performance reviews will help in providing accurate and relevant work-related information. Remember that state laws will vary on qualified immunity legislation and these laws like most other’s will continue to evolve through court decisions and the legislative process. Seek guidance if you are confused or need assistance developing or revising a process. Be consistent, equitable, stick to the facts and control the information your organization provides during a reference check.
-Matthew W. Burr
[i] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx
[ii] https://nys.shrm.org/sites/nys.shrm.org/files/ReferenceChecking.pdf
[iii] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx
BURR CONSULTING, LLC 