Businesses walk fine line when asked about former employees

The phone rings. It’s a recruiter calling to check a reference for a former employee who left under, shall we say, less than favorable circumstances.

What do you do?

By Michael Chandler
The Salt Lake Tribune

What’s that lesson your mother preached? If you don’t have anything nice to say . . .

"I couldn’t say anything at all," said Betsy Oswald, an instructor and human resources manager at the University of Utah’s department of continuing education when she received one such call.

"I had an employee who was let go for cause, for irregularities with accounting, shall we say . . . When someone called and asked for a reference, I couldn’t say anything," said Oswald.

Spurred by fear of litigation from spurned employees, the University of Utah is one of many employers that have written policies spelling out how — or how not — to provide references. More than half (53%) of all organizations have such policies in place, according to a 1998 national survey of 854 human resource professionals by the Society for Human Resource Management.

"The safest thing is for an employer just to give name, rank, and serial number," said Rob Rice, an employment lawyer at Ray, Quinney and Nebeker, based in Salt Lake City. With a third of the federal court docket filled with employment-related lawsuits, he recommended that clients’ references include only the bare facts: employment start date, end date and job description.

"If a former employee claims actual malice, or that the employer gave false information, that would justify a lawsuit," said Rice. Legal counsel could cost in the tens of thousands of dollars; a lawsuit could cost ten times more.

In 1995, a group of human resource professionals in Salt Lake City became frustrated by the inability to get or give good information about prospective employees. So they spearheaded passage of the Employee Reference Immunity Act. Utah is now one of more than 30 states that provides legal immunity to employers who give information about an employee’s job performance at the request of a potential employer.

Many employers don’t know about the law, though. Many who do still are reluctant to test it.

Some human resource specialists defend the system of just-the-facts reference checking as an important step toward making the hiring process more fair. By eliminating the opinions of former co-workers and employers, the chances of discrimination or personality-driven judgments are much smaller.

But many employers agree that hiring is an expensive gamble, and off-the-résumé insights into how often employees show up to work, how they perform, and what kind of attitude they bring are critical to their decision-making. mination or personality-driven judgments are much smaller.

There is also a chance that employers could get sued for negligence by unwittingly hiring — or knowingly referring — someone with a destructive track record.

So how can prospective employers avoid potential disasters or just get the detailed information they seek?

"The new policies create high hurdles, but people who are savvy are still able to get good information," said Wendy Bliss, author of Legal, Effective References: How to give and get them. She recommended getting job applicants to sign a liability waiver when they apply, which might make employers feel safer to speak.

Bliss also suggested skipping past human resources personnel completely. They usually write the restrictive reference-checking policies and probably will stick to them, she said. Direct supervisors may not be aware of the policies and may be more willing to talk, particularly when they have good things to say.

Some employers, stymied by silenced human resource officers, are going outside traditional lines for information, although the quality of reference becomes more suspect. "There is a whole back room thing that goes on," said Patricia Steigauf, senior managing director of Career Management Counseling & Coaching.

Prospective employers will ask around in social situations or outside the workplace. "Maybe it’s a neighbor, maybe it’s someone who used to work with that person. Maybe they will get an opinion from someone, but it’s entirely subjective," Steigauf said.

During on-the-record reference checks, employers report they have gotten good at speaking in code. A pause, a raised eyebrow, a change in inflection — all take on new meanings. What’s not said has become more important than what is.

A typical reference-checking conversation could go something like this, said Jeanine Wilson, director of human resources at Prolexys Pharmaceuticals.

You say: Are they eligible for rehire? Long pause. Former employer says: I can’t really say.

"You can kind of fill in the lines," said Wilson.

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