Boy, oh boy! Have we heard over the years how everybody, when they interview candidates, interviews confidentially? Yet some employers really don't know what it means and even fewer realize the legal consequences of violating a candidate's confidentiality, when he is looking for a new position.
If a prospective employer directly or indirectly causes a potential candidate to be fired or dismissed because of his actions in soliciting or interviewing him, the prospective employer is LIABLE. Not only can a company be held responsible, but also the employer can personally be pursued. In our litigious society, don't think that a candidate who lost his job because you violated his confidentiality won't think of suing you and your company for damages. If he doesn't think of it, his lawyer will! The most recent case of this kind was settled for close to five million dollars (you read that right!). The candidate proved the hiring company not only cost him his job, but also because he was fired, it destroyed his career and future opportunities. Don't think this can't happen! It can! It does!
A person has a right to confidentially look for a new job, and no one has a right to cause him to lose his present one. We have heard the excuse that...."well, the candidate was looking for a job.... he ran the risk of being found out... he wanted to leave anyway... It’s his fault for even looking in the first place". It's enough to make our hair curl and a lawyer drool! The fact that a candidate is looking for a new job has nothing to do with someone causing him to lose his current position.
What We’ve Seen
We have seen prospective employers actually check the references of a candidate at the firm where he was presently employed. We have also seen elaborate messages left for candidates at their place of employment concerning times and details of interviews with prospective employers. We have seen rejection letters and "thank you for applying" letters e-mailed to candidates at their places of employment. We even saw a form letter sent to a candidate's boss asking for a written reference regarding the character of the candidate and why he should become a member of their family, before an initial interview took place. With the advent of e—mail, we have seen prospective candidates communicate with perspective employers from their office e-mail. A perspective employer should not respond to a candidate this way, even if the candidate gives him or her permission. A perspective employer should specifically inform a candidate that he would not communicate this way. (Try to convince a jury that you didn’t know you were risking the candidate’s present job!)
What is even more astounding is the number of employees who think that there is nothing inappropriate about some of these actions. They feel that the candidate’s application gives them a license to ask anyone anything they wish.
Common Sense
The overall message here is to truly be CONFIDENTIAL in the process of interviewing and hiring candidates. Use common sense. If you are using a recruiter in a search, let him or her set up all the interviews. If you get to the reference stage, get references from the candidate at that time I Ask the recruiter to help with the reference checking. His or her professional expertise will protect everyone. DO NOT contact the candidate at his present place of employment. Even if the candidate says it's permissible to do so, DON'TI In case of a dire emergency where the candidate has to be called at his present job, speak to him discreetly, and ask him to call you back. Don't leave a name or number! In fact, it's best, when asked by the receptionist or operator, "Who's calling?" to state a friend or even an alias name. This will seem a bit extreme, but the alternative risk of your company hearing from the plaintiff's attorney is worse.
Off-Site Meetings
If a company is interviewing a candidate from a competitor, it might be advisable to arrange interview meetings off site. Recruiting firms usually have facilities for this purpose. Restaurants are NEVER good places to interview; it just isn't the best environment for both parties. Business lunches and dinners might be fine, but an evaluative interview already has enough built-in emotional stress, without the added social stress of making lunch (or dinner) talk. Interviewing off site provides a feeling of neutrality on everyone's part. We've known instances of disgruntled receptionists calling their company's competitor to tell them their star salesman was interviewing. Had the candidate not been seen at the interviewing company, this wouldn't have happened. The candidate doesn't feel he is compromising himself by going to the enemy camp.
Responsibility
The overall responsibility for confidentiality of a candidate being interviewed lies with the prospective employer. Even though the candidate may initiate the process, the onus of responsibility lies with the company who is considering him. Although the candidate may be soliciting a company, he can become an adversary very quickly. It isn't hard to keep confidentiality as part of the process. It just takes care, forethought, and practical consideration.
