Employee disengagement is not a pleasant thing for the employer most especially if it’s your best talent. People leave for many reasons and these reasons can influence employee referencing but that should not be the case. The employment relationship therefore doesn’t always end on a positive note. Now the question is what should employers say during a reference check? What is the position of the law on employee referencing? Whose responsibility is it to do employee referencing – HR or line manager/supervisor? What is the role of HR in all this?
These and many other questions will have to be answered to bring finality on the subject of giving referencing about an ex-employee. Clarity on who and what should be given out about an ex-employee will protect the employer against any law suit and protracted legality which can be avoided.
Can an employer say that someone was fired, frequently late or a poor performer? Employers can usually be truthful during a reference check, but they should be aware of their rights and responsibilities pertaining to industry practice. It will be fair and in the right direction to give the facts which can be defended than to refuse to respond to employee referencing.
There are no laws that address what an employer can or can’t say about a worker. However, there are enactments of legislation that puts certain rights and responsibilities on both the employer and employee. If for some reason an employee doesn’t uphold these expectations and responsibilities required of him or her, the employer may be immune when providing information for a reference check provided the information given out is accurate and there are records to support same. These statutes generally provide that an employer is exempted from some level of liability when it responds to a reference check in good faith. The immunity is lost, however, if it can be shown by the ex-employee that the employer knowingly or recklessly provided false or misleading information or acted with malicious intent. If limited information is not given the employee can sue for defamation because there is no absolute immunity for the employer.
The employer does not enjoy complete immunity – the employer could face a defamation (libel or slander) lawsuit from the employee if care was not taken in limiting the type of information provided and making sure that the information given out was the fact and also given to the correct person.
Employers may need to be forthcoming if the reasons for separation includes conduct that jeopardized the safety of a minor or vulnerable adult, brought some reputational damage to the brand, theft, sexual harassment, deliberate sabotage, espionage and other such offences deemed as serious misconduct.
The only window available will be the fact that the employer acted in good faith and that the information given out was not done with malicious intention, but will this defense be enough to save the employer from any lawsuit?
Employers must officially write to seek reference on an employee – such processes must be documented and filed for future referencing. This is one of the reasons why keeping data on all employees and ex- employees is very important. You might not know when you will be required to go into your archives, it serves as a good protection.
Employers should maintain control of the information that their organization gives out. They might do that by putting limits on who can give a reference or what information can be provided. However, we should all keep in mind that all employers need information about past performance and behavior in order to determine if a potential candidate is a good fit for the position. Former employers for this reason have the responsibility to give out the fact concerning an ex-employee.
Employers should therefore train an HR professional who will be assigned to provide job references. This person should make it a point to acquaint him or herself with the employment history of the ex-employees so relevant referencing can be given. Also, care should be taken to ensure that the exact and same process is used for each job reference request to avoid any claims of discrimination.
All disclosures should be made in writing and only upon written request from the prospective employer to avoid divulging information to the wrong person. Provide only factual information, and avoid giving opinions about the employee’s suitability for a new job. Use documented evidence of the employee’s job performance and behavior as the basis for the information. Such forms designed for employee referencing must be reviewed from time to time to reflect modern trends – it could possibly go to the legal department for second opinion and vetting to ensure there are no legal breaches.
Employers shouldn’t ask or answer questions about whether a person is eligible for re-hire. The answer you get might not indicate anything except how well the person giving the reference liked the individual and will certainly not contain enough specifics on which to base a hiring decision.
Providing false or misleading information about a resigned staff has the propensity of jeopardizing the employment opportunity of a job applicant. No business must be interested in doing that – it may not be done with the purpose of destroying someone’s future but any such bad and wrong information can result in same. Avoid any such situations so you don’t build a bad brand unknowingly for yourself and employer.
Job seekers must make it a point to provide accurate information during the pre-employment period, sometimes job applicants want to sound impressive and therefore write on their CVs and other forms certain information that they cannot defend.
HRs must seek regular update of employee records so they will not have to refer or rely on line managers/supervisors for information during employee referencing. If the circumstances under which someone resigned was not a pleasant one; there will be the temptation to give false information which will not be a true reflection. On the other hand, the person giving the information may be extra nice even when the person demonstrated bad and unethical behavior.
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