Why are we doing this to ourselves?
This week’s post is really more a rant. Sorry, but sometimes it just has to be said.
As an HR professional, I do the much of the interviewing at my organization, and I conduct all the reference and background checks. To say this is a chore I intensely dislike is a bit of an understatement. In fact, it often sets my hair on fire. Hiring managers and HR folks both know how frustrating and yet how very necessary it is to check applicants’ references. Unfortunately, it can be an exercise in futility, or at least one with very few returns.
It’s no secret that hiring managers have learned that in order to get substantive references, they have to bypass HR at the applicant’s former employers. But there’s a dirty little secret that many of you may not know: HR pros often avoid each when checking references. Why? Because we torture each other by either using cryptic language or worse, refuse to give any worthwhile information. Sure, some of us are able to cultivate relationships within our own industry, or in our own geographic location and are able to speak with one another openly, but we do have to try to get information from employers with whom we’re not familiar and with whom we don’t have a relationship. While HR is often not the one to decide whether to provide references, we’re the ones to toe the line and follow our company policy. Companies will heed the advice of their own attorney, or the many other attorneys who advise never to give more than name, rank and serial number.
Why do we do this? Why do we, and our management, fail to realize that all this stonewalling only makes it difficult for good employees to find new jobs, and results in bad employees being passed around?
The short and simple answer is that "we" want to avoid the potential liability should anything we say about a former employee be considered defamatory or discriminatory. Some people even still believe it’s illegal to give a "bad" reference. It isn’t; not at all. There are no federal laws restricting what information an employer can disclose about former employees. If someone was fired, the company can say so. We can also give a reason. For example, if someone was fired for stealing or falsifying a time sheet, we can explain why the employee was terminated. The employee failed a drug test? Yep, we can say that, knowing we have the drug test results. Did the employee arrive late to work 5 times a month for 6 months, which can be officially documented through time sheets or automated attendance systems? Yep, we can say that. Did the employee fail to meet documented sales goals after repeated coaching? Yeah, we can say that.
Would it surprise you to find out that several states actually have laws that require employers to provide (usually on request) to former employees "service letters" that state the reason the employee was separated from service? (Check this out) Yeah. And those same laws provide a certain amount of indemnity to employers who provide this information – factual and accurate information – in good faith compliance with the law.
Legally, we can say anything that is factual and accurate, and non-discriminatory. Even in states that do not have laws requiring service letters, giving factual and accurate information provides us with protection from claims of defamation.
However, factual and accurate (or the failure to be factual and accurate) may be where some have gotten caught up in the lawsuit trap, and why now, we’re all so damned afraid to speak openly and honestly about the performance of former employees.
So, as to not leave this as just my rant of the week, here are some ways we can be useful to both our fellow employers, and to those employees who deserve to find another job without our making it difficult for them:
Just the facts: Limit your answers and comments to accurate, documented information. Don’t speculate about the possible reasons for the poor performance or bad qualities; keep your opinions and speculation to yourself.
Keep it real: Don’t give false flattery, either. And never gloss over serious behavior or performance flaws of former employees. You do not want to get caught up in a potential negligent referral claim from the other employer.
Get written releases: You can do this on the front end or the back end. During the application process, there is often a notice/release the applicant signs allowing the potential employer to perform a criminal background check, reference checks, etc. These can be provided to the applicant’s former employers when you begin the reference checking process. Or, you can have a practice of having all separating employees sign a release, an agreement that gives you permission to provide information to prospective employers (and promises not to sue over the information you provide).
Designate one person to provide references: Have one trusted person in your organization authorized to provide reference information on former employees. Designating one person will lessen the chance that anyone will say something that may come back and bite you. Normally, this person would be in HR. Companies should be allowing HR, who are trained and have the requisite knowledge to avoid liability, to give and get references.
In sum, don’t give false information, or make disclosures of private information with malicious intent, or with the intent to mislead. Don’t violate employment discrimination laws (i.e., only giving good references to former white employees, and bad references to former black employees). Simply be truthful. We should never be afraid to give accurate information to prospective employers. Maybe, one by one, if we can start responding honestly and accurately, we’ll begin to receive the same courtesy when we’re making those reference calls.
*sigh* Yeah, I don’t really think so, either, but it’s worth a try, isn’t it?