The erstwhile straightforward task of providing references for departing employees is getting more convoluted. While earlier employers never had to think twice before speaking their mind, now the fear of litigation hangs like a Damocles sword over their heads.
The respondent company is literally caught in the crossfire, as former employees do not hesitate to file defamation lawsuits even if they are just angry over missing out on a job. Similarly, they also run the risk of negligent reference claims from the requester employer.
Little wonder then, managers either totally refuse to respond to reference check requests or at best, resort to tricky responses.
Employers do want to assist their former employees in landing a job.
They are also open to helping prospective employers evaluate and validate candidate potential so as to prevent unfit hires.
But the inherent perils have effectively tied their hands and make them shy away from honest, insightful and detailed answers.
However, keeping the following recommendations in mind will help you curtail the risk, yet provide useful references:
Company policy: Most companies are trying to cover their back by establishing clear policies on references. Following this will minimise the chances of litigation and also keep your job out of jeopardy.
For instance, most companies require their managers to notify the HR department about reference requests, as they will know how best to respond. Therefore, when you receive such a request, instead of responding immediately you should take down the requester’s contact information and return the call after reviewing the company policy and contacting HR. If you get the go-ahead, always follow the company protocol in your responses or consult with HR about what you can disclose.
Consent form: When you receive a reference request, always insist on a signed release from the former employee that authorises disclosure of employment information. This will be your immunity from all claims if the information provided is accurate and in good faith. Some companies even choose to directly obtain the waiver during the exit interview itself.
Professional manner: Tempting as it might be, a reference check is not the time to give vent to your malice or get your own back against the former employee. You should stick to a factual, unbiased and accurate evaluation limited to the work-related aspects of the employee’s behaviour.
Never offer judgmental opinions, voice subjective ideas or misleading/incomplete information. Also, restrict yourself to areas where you had direct contact with the employee and not resort to hearsay.
If asked specifically, you can comment on the employee’s performance, attendance, conduct and reasons for termination, but never volunteer any information on your own. Also, refrain from rating the employee’s characteristics on a scale or predicting his success/failure in the new job, as it is both prejudiced and unfair.
No discriminatory issues: Discussing sensitive information like age, religion, race, marital status or disability of an ex-employee is asking for trouble. Similarly, avoid personal and inappropriate issues.
Exercise caution: On balance, you should always disclose both positive and negative traits of an employee’s performance and not omit any information that is relevant to his suitability for employment.
For instance, if an employee was fired because he was unmanageable, unfit for the job or failed to contribute, you have to be careful when answering about his termination. Do not hide facts, but do not degrade the employee either. A standard ‘performance did not meet requirements’ can suffice.
If an illegal act or wrongful deed like theft or violence is involved and you fail to disclose this information during the reference check, you are vulnerable to a negligent reference claim if the employee repeats the act while employed at the new company. It’s always advisable to seek legal advice before responding in any such unusual circumstances.
Not all: As a rule, only answer questions that you feel comfortable with. You can decline with a simple ‘I would rather not comment’ or at best, concede to confirm the bare minimum requirements like job title, salary, dates of employment and job responsibilities. Also, beware of sly and unprofessional questions that can land the company in hot waters.
Document it: It is advisable to avoid giving oral references and communicate only in the written form. Else, ensure that you note down the conversation details like what was disclosed and other supporting information to protect yourself from litigation.
This way, you can safely help both the former employee and the potential employer without getting sued for your efforts!
PAYAL CHANANIA
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