Tech & Work

Hiring strategies: Workarounds for strict reference policies

Many hiring managers run into legal roadblocks when trying to get a substantive reference for a promising job candidate. While strict policies keep many previous employers from saying much, there may be a few ways to get the information you need.

As a hiring manager, you've no doubt been frustrated by the perfunctory references you get from a prospective employee's former company. It seems like the only information that a previous employer will offer is a confirmation of employment dates.

Patricia S. Eyres, a litigation attorney for 18 years who now heads up Litigation Management and Training Services, Inc., told TechRepublic there are good reasons employers don't give substantive job references for ex-employees. "By law in most states, an employer doesn't have to give any reference at all to a departing employee. In fact, this is standard practice with some employers,” Eyres said. Others adopt specific policies that state most of the following:
  • Only HR departments can give a reference—not line supervisors or managers
  • The employer (through HR) will only confirm inclusive dates of employment, title, and last rate of pay (with some adding the ability to answer "yes" or "no" to the question, "Is she/he available for rehire?")

Whatever the policy is, it must be enforced consistently. This practice can, of course, penalize a really good ex-employee that deserves a good reference. The trick is knowing how to work around the policies so that you can determine, through the input of a previous employer, whether a potential new employee is a good hire.

Reasons behind the policies
Eyres stresses that prospective employers must understand why a prior employer may need to protect its interests in this way. "It used to be that the only legal concern for the employer who gave an ’honest and negative‘ reference for a prior employee was a claim against that former employer for defamation of character or retaliation," she said. "Now, in several states (primarily California and Florida) the law is as follows: An employer has no obligation to give a substantive reference at all, but if you do, you have to tell the whole story—the good, the bad, and the ugly."

This became the law in California when a school district gave only the "good" part of a reference for a departing teacher, and didn't tell the new employer about allegations of improprieties with a minor student. When the teacher did the same thing in his next school, the prior employer was sued for giving only "half the story in the reference." A case in Florida involved a situation in which four people were killed by a relatively new employee about whom a prior employer failed to disclose, during a reference check, a threatening incident that had occurred previously.

According to Eyres, Michigan is the only state in the union with active legislation that makes it easier for an employer to get a reference. Its legislation, enacted in 2002, grants former employers immunity from civil liability if they, in good faith, disclose to a prospective employer information about job performance that they have previously documented in their personnel files. The immunity doesn’t apply if they're giving false or misleading information or if it's reckless. (California law is the opposite. There, you're held liable if you give negative information about an employee of if you don't tell the whole story.)

Some strategies
One thing that you can do to try to work around this reference issue, Eyres says, is develop a relationship of trust with other managers in the same industry (although she admits that befriending management from competing companies can be a challenge). Also, she cautions, don't take this to mean that you can call a contact and say, "Hey, X has interviewed at my company. Off the record, can you tell me what kind of employee he was?" Because even "off the record" remarks can be a violation of a company's policy. You want to be careful how you phrase the question. You don't want to put people on the spot where they either have to be rude to you or violate company policy.

Eyres says, "One of the ways you can start out is by asking, 'Do you have a policy that will allow you to tell me anything substantive about this applicant?' If they say all they can tell you are dates of employment and last rate of pay, then you can ask if they can tell you if the person is eligible for rehire."

If they can, then the answer to this question can speak volumes. A person who leaves a company of his own choice might be eligible for rehire. A person who is terminated or let go due to a company financial situation might be eligible for rehire. A person who is let go for cause may not be eligible for rehire. As long as you know the ex-employer has sound principles behind rehiring decisions, then the information can be valuable. You don't want the ex-employer offering an explanation behind the rehire decision, as, again, that would be a violation of company policy.

If the manager is not allowed to answer the rehire question, and you've gotten to know this other manager from trade shows or other professional associations, you can be a little more cagey. Eyres suggests that you ask, "Don't you hate it when you have an employee you'd really like to give a good reference to but your company policy prevents it? Is this one of those situations?" If the manager agrees, then you can usually infer that the candidate you're looking at was a good employee. "You're not getting specific information about the candidate. You're asking the manager person-to-person if he or she experiences the same frustrations you do," said Eyres.

But this technique might not be completely fair to the job candidate, Eyres points out. "You're basing a job offer based on a conversation that's almost in code."

Pitfalls to avoid
Even if you do live in Michigan and are able to ask a former employer freely about a job candidate, know that you can't ask the former employer anything you can't ask the job candidate him- or herself. In other words, you can't ask the employer if the candidate has a lot of children, or if the candidate could get a personal reference from a member of the church or synagogue he or she attends. Those are discriminatory questions.

The last resort
Eyres says that there are firms out there who do background investigating, but points out that they're very expensive. However, if you're afraid to make a decision based on just a confirmation of a candidate's "name, rank, and serial number," you may want to consider a background investigation anyway.

About Toni Bowers

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

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