In the last issue, we discussed four practical aspects managers should consider when giving references on past employees. We addressed having a stated reference policy, documenting performances and having written records. We would now like to discuss three other aspects of giving references.
HONESTY. Please don't smirk or laugh when you hear us recommend this attitude. We have seen and experienced the most amazing instances of just outright lies regarding a reference you can imagine. The instance occurs mostly when a departing employee is told he will receive a good reference from his employer in the future. Then when the time comes for one to be given it is a poor one. We have even seen poor references given by the same employer who wrote a positive (generic) reference letter. Now does that look stupid or what? Don't tell a departing employee you will give him a good reference if you won't. We can't tell you how often we run into this. It is insaneI To let himself off the hook for the moment, a soon to be ex-employer tells a departing employee he will give him a good reference, then he doesn't. Or worse, he gives him a bad one, which even if correct, documented, objective, legal, etc., is such stupidity it invites litigation. If a less than positive recommendation is going to be given, tell the employee if he asks about a reference before he departs. If he cites you as a reference anyway, a defamation claim would be harder to support.
If records are kept like they should be it is not hard to be honest. Either an employee performed, showed up on time, did quality work etc. or they didn't. Subjective opinions although honest can get one into trouble. So just stay away from them. Honesty is absolutely imperative in giving a reference.
VERIFY AUTHORITY TO CHECK A REFERENCE. It is imperative that references be given to the right people. Privilege is one of the most important legal defenses to a defamation claim. This means that reference information is provided to a person who has a legitimate legal right to it.
The need to check references before hiring is protected by this privilege. However, information given to someone who does not have a legitimate interest in such information, could constitute defamation.
It is not uncommon for candidates to solicit friends, etc., to check their references for them to see what kind they will receive. Any negative information given to the wrong person can be damaging. Verifying the validity of reference requests is absolute. This is especially true of those that come by phone. If a manager responds to telephone requests for a reference it is wise to take the callers name, title, address and phone number then call them back with the information. This will help to verify the callers legitimacy. It is much more unlikely that the wrong person get a reference if this procedure is followed. Again, just make sure everyone knows the policy up front.
One policy is to only respond to written requests sent on the letter head of the prospective employer. If this policy Is going to be adopted though, it must be communicated to all the employees. The time it takes to do reference checking can impede the hiring process for the ex-employee, so if it is a policy to respond to written reference requests everyone must know it.
WRITTEN CONSENT. This is a practical matter but is is seldom done. It is a simple consent form signed by the employee at an exit interview. It should state that the employee understands the reference policy of the company. It should be simple, easy to read and separate from any other documents. Such a consent should not be Integrated with an agreement regarding severance for a terminated employee. Such a coerced consent could open the door to litigation. The employee is, it is construed, forced to sign the consent form before he can get his severence. If the form is separate, the employee has the right not to sign it. If he does, he has more clearly agreed to it with no duress. Keep it separate and clear. In the next issue we will discuss other common sense, practical procedures regarding the giving of references.
