Reference Checking Rights

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Is honesty always the best policy? When it comes to providing a negative reference about a former employee, the answer is a cautious “yes.”

As HR practitioners, we have multiple obligations, which includes the professional requirement to act in good faith, with honesty and integrity. Furthermore, we must undertake due diligence to meet numerous legal and organizational conditions in order to ensure regulatory compliance. When all of these factors work in alignment, HR practitioners can be reasonably assured that our professional obligations are being met.

Reference checking, as part of the last stage of a candidate selection process, may sometimes stand as a barrier to meeting these obligations. On the one hand, reference checks provide for honest insights from a third-party perspective into the characteristics of a potential candidate. On the other hand, the reference checking process can turn into a minefield of negative consequences if not managed properly, by both the recruiting employer and the employer providing the reference.

An example of the consequences that can arise from providing a negative reference can be found in the case of Papp v. Stokes et al, 2018 ONSC 1598. This case, summarized here, occurred as a result of a former employer stating to a potential new employer that the candidate they were considering had interpersonal issues with former colleagues. As noted in this additional article, the former employer also stated there was “no way” they would re-hire this person. As a result, the person was not hired, and went on to file a civil suit for defamation against the previous employer, based on the negative reference. As noted in both case summaries, the courts found the former employer was not at fault and dismissed the defamation complaint. The decision by the courts was based on the fact that the former employer had provided a truthful reflection about the person that was not malicious in any way.

While this seems to be a ‘winning’ case from the employer’s perspective, it comes with several resultant cautions. References must be based on a factual representation, and must not veer into personal opinion, or that which may be perceived as a malicious attack. This can be done through written reference letters or online questionnaires that provide neutral job-related information about the candidate. In-person reference checking, however, may be influenced by both tone and subjective perceptions about what is being communicated in relation to a particular candidate. Even though the risk of a lawsuit may be low, no employer wants to find themselves on the receiving end of a claim that may not be defensible, both in evidence and in fact.

What is an HR practitioner to do? Ensure that the evidence and facts reflected in each decision-making step of the employee selection process, including reference checking, is based on due diligence, good faith, honesty, and integrity.

Discussion Questions:

  1. As a job candidate, what steps can you put into place to ensure your references provide accurate information about you to a prospective employer?
  2. From an HR perspective, what types of protocols do you think should be put into place to reduce the risks of negative reference checks?
  3. What will you do when you are asked to provide reference information about a former employee who was a poor performer and had ‘attitude issues’?

Honest References Required

Is honesty the best policy when dealing with reference checks?

There should only be one answer to this question.

That answer is a resounding: ‘Yes!’

If only the reality of recruitment practices reflected this basic principle during the reference checking process. Unfortunately, there are numerous examples of the recruitment process failing at the very end, due to dishonest approaches by either the candidate or the potential employer in an effort to get the recruitment job done and to get the candidate into the job itself.

The most common example comes from the assessment of the candidate’s personal or behavioural attributes. Many employers fear the threat of a lawsuit if they provide a negative reference for a former employee. Rather than telling the ‘truth’, however, employers find themselves giving neutral information that says nothing at all about someone’s conduct or professional behaviour. Many organizations have a policy that restricts reference providers to giving fact based information only, such as confirmation of employment history with no performance or behaviour related commentary. While not dishonest, this approach may not provide the reference checker with a full picture of the candidate’s behavioural profile.

A recent decision by the Ontario Supreme Court has relieved this burden of neutrality on the part of the employer. This case establishes a precedent that an unfavourable, and yet honest, opinion of the former employee is acceptable.

Click here to read about the case

On the employer side, manipulation and dishonest practices have also left a stain on the integrity of recruitment practices. Sometimes recruiters themselves make fraudulent claims about a candidate in order to get that person into a position and collect the resulting monetary reward. The results from these types of actions are extremely costly and severely damaging. The need for ethical and honest practices on the recruitment side are explored in a recent article posted in HRM On-line magazine.

Click here to read the article  

What does good HR practice require us to do?

Allow for time to get integrity-based reference checking done right.

HR practitioners need to plan and prepare for this final stage of the recruitment process with the same amount of focus, integrity and due diligence that has gone into all of the previous recruitment and selection steps. There is no benefit from rushing and manipulating the reference checking process just to get through the final stage as quickly as possible.

The investment in making a sound hiring decision is just as important at the end as it was in the beginning. The constructive results from an honest and integrity-based process all the way through will always prove to be the right way to go.

Discussion Questions:

  1. Thinking of your own situation, who will you approach for professional and constructive references in your job search?
  2. As an HR practitioner, what steps can you put into place to ensure the integrity of the reference checking process?
  3. If you found out someone gave a bad reference for you, what actions would you take?
  4. How will you respond to someone who asks you for a reference that you would not be able to support?

 

 

Recruitment vs. Reality

 

Wooden sign- Happily Ever After
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As a student in the Human Resources field, you have probably heard the analogy that the recruitment process is very similar to the rituals of courtship.  There is the initial interest; then the attraction; then the getting to know each other through some dating; and then, if all goes well, a long term commitment is formed by partners for life.

Recruitment follows a similar pattern.  There is the initial interest and attraction to a position with a particular company; then there are at least a few interviews to get to know what the mutual expectations are; and then, if all goes well, a long-term commitment is formed by the contract of employment between two partners.

In both processes, we may see or hear some things that we do not particularly like, but in the haze of mutual courtship, we may choose to ignore these things or hope that they might be minor details that will not get in the way of long-term commitment and mutual success.

Then, reality sets in.

In most cases, partnerships work through the annoyances together.  If, however, the things that we chose to ignore during the courtship and/or recruitment process become glaringly evident and turn into unsurmountable obstacles, the relationship will come to an unfortunate end.

As HR professionals, we can avoid the inevitable break-up of the employment relationship by ensuring that the recruitment process is focused on reality for both parties, before any commitments are made.

Anna-Lucia Mackay outlines the need for multi-step recruitment processes that are focused on facts and reality-checking.

Click Here to Read the Article.

The author provides us with a detailed end-to-end approach for successful recruitment, to help HR professionals and candidates ensure mutual compatibility before contracts are signed and the path to the future is set for everyone.

Discussion Questions:

  1. Identify three key indicators that behavioural interviews provide to the employer in a recruitment process.
  2. What types of questions should be asked of a candidate’s references to ensure fact-checking?
  3. How will you know you are getting the answers you need from a candidate’s references?
  4. What are three potential warning signs during a recruitment process that the HR professional should not ignore?