Withholding Employee References: It’s Time to Stop the Insanity

Do you give candid references on former employees?

If you’re like most, probably not. Due to advice given by legal counsel or an article someone in HR once read, the preponderance of employers has one of the following policies:

  1. No one is allowed to give any information under any circumstances.
  2. You can report only “name, rank, and serial number” (dates of employment, job description, starting and ending pay).
  3. You must refer the caller to HR (where they only report name, rank, and serial number).

This is insanity. It stacks the hiring odds in favor of the most questionable job applicants. A huge number of bad hiring decisions could be avoided if only employers were more forthcoming with one another about their former employees’ actual performance on the job.

How to circumvent legal liability

The good news is you can circumvent any legal liability and share this vital information when you have all employees who are leaving your organization (for whatever reason) complete and sign a Reference Release Form. In essence, this is a “hold harmless” document that asks departing employees to choose which work-related behaviors (i.e., honesty, initiative, dependability, quality, etc.) you, as their former employer, may discuss when asked for references.

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Of course, the really great folks who leave will allow you to discuss all aspects of their performance. The marginal or poor performers may choose to let you to only report on their strengths, if any, or report nothing at all, but it will be just as telling to a potential future employer if you have to say: “I’m sorry, but John did not give us permission to discuss any aspects of his on-the-job performance with any of his potential employers.”

This was originally published in the May 2011 Humetrics Hiring Hints newsletter.

Mel Kleiman, CSP, is an internationally-known authority on recruiting, selecting, and hiring hourly employees. He has been the president of Humetrics since 1976 and has over 30 years of practical experience, research, consulting and professional speaking work to his credit. Contact him at mkleiman@humetrics.com.

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8 Comments on “Withholding Employee References: It’s Time to Stop the Insanity

  1. With all respect, having sat in the #1HR chair for many years and battled to silly and frivolous law suits brought by ambulance chasing attorneys that the Courts, in their infinite undeterminable stupidity allow to proceed, name, rank and serial number is, unfortunately, the ONLY prudent way to handle a reference from an unknown employer seeking said information. Now, the truly seasoned HR practitioner KNOWS how to get the information through the side and/or back doors – people and/or associates that know people that work at said company and thus get the information “off the record”. Is that the “best” way ?? Absolutely NOT, I agree. But until our society reins in frivolous law suits and the EEOC starts truly dealing with REALLY discriminatory issues and takes on the BIG, tough cases rather than the usual harassing the medium and smaller companies that can’t sustain a major fight and legal expense with the EEOC (the bully), then prudence overrides honesty and the “bad” employee wins. However, there are many ways to “couch” name, rank and serial number that adequately let’s the receiving party know whether it is a “good” reference or a “hand-off for your life” reference. The REAL world is tough playing field. An experienced HR pro knows how to play it !!!!!! My humble “2 cents” !!!

  2. Humble apologies, it should read “. . .battled the silly and frivolous . . ” Sometimes the fingers do not accurately reflect what the brain is telling them to type. But further, Mel’s point is spot on that we have reached a point of ridiculousness where the legal community has overridden what was once common sense. But until we rein in the out of control Courts and governmental meddling and useless intervention, prudence and self-preservation, especially for small medium sized companies, must be the watch word. I would also recommend to those who DO end up in a frivolous lawsuit to very quickly pull trigger with a Rule 11 frivolous suit position. Lawyers will not play the card until much later in a lawsuit, but I ALWAYS make my attorneys play it fairly early in the suit before expenses pile up and only the attorneys are making money. Remember, the EMPLOYER controls the case, NOT the attorneys. Ultimately, it is a business decision and each business/employer must determine its own threshold of exposure and/or costs. Again, my humble “2 cents”.

  3. 1. A written release signed by the former employee to give permission to release information is one step.
    2. Important to only release factual performance data, ie attendance, productivity, etc. Harder to judge attitude, personality, etc since these could be influenced by circumstances, issues with others, gray areas.
    But overall, yes, we get so caught up with all the legal, potential concerns, that in order to avoid them, we say nothing.

    1. @927cdab57007e7a730e04bb81e0990a1:disqus Great points. A release is an easy way to get the information openly from a former employer. It informs the candidate and it allows them any due explanation before contact is made. In my opinion, we could be both open and get the information we desired.

      A third piece of this is having relationships with other HR/recruiter folks in your industry. If I know someone in the industry and they call me about a former employee, I’ll be more forthcoming than with a stranger. Obviously, there’s still risk there and you should be comfortable with that. But I’ve had a lot of great conversations with recruiters that have actually cemented a hiring decision.

      Of course, I would still prefer things be out in the open but if you can’t do that, I would still try to get as much real, relavent info as possible.

  4. Can anyone tell me is it legal for a business to with hold giving a reference if you have already faxed a letter giving them permission to. I am trying to get a job and a place I worked for has gotten a form they have to fill out to answer questions about my employment. They have had it for almost five days now and still have not filled it out and faxed it to the place I am seeking employment. Any help would be great

  5. This issue would not be an issue if people, managers, supervisors, HR could be trusted to keep their personal likes and dislikes out of the reference process. All of this fuss was ushered in because of those who wanted to destroy worker rather than terminate them; as if losing a job isn’t bad enough in itself. Pettiness, revenge for standing up for one’s rights when HR would not, are no reasons to rob someone of future employment. As it seems to go, a few will ruin things for many.

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