Getting and Giving Employment References
An applicant's past performance in previous jobs is one of the best indicators you will get of how she will perform on the job. However, recent legal developments have changed the whole process of reference checking into a field of quicksand. Some employees have successfully sued their former employers for back wages of jobs they did not get, due to negative references. The courts found that those references constituted defamation of character.
Now many employers are reluctant to give references for fear of lawsuits. A survey by the American Society for Personnel Administration found that most personnel managers hope to get as much information as possible from previous employers but intend to give as little as possible themselves to prospective employers.
I am not an attorney. If I were, perhaps I would advise you to play it safe, to give out the bare minimum while trying to get what you can out of other employers. But I believe that it's possible to share this valuable source of information while minimizing the risk.
As a prospective employer, you are not in danger of being sued for defamation. You are free to find out whatever you can, although this may not be easy.
First, you may have to overcome the reluctance of the previous employer. Some will tell you that their policy is to give out only the employee's job title and dates of employment. Some will only respond to written requests, which may slow down your hiring process and reduce your ability to find out what you need.
You might be able to overcome this reluctance by stressing that the information will be held in absolute confidence and by giving full information about yourself -- your name, your position, the co-op's name and location, and the nature of your business.
Although no document by itself can ensure freedom from lawsuits, the co-op could show how seriously it takes the reference process by asking all applicants to sign a statement giving the co-op permission to inquire about all aspects of previous employment, and specifying which employers, if any, not to contact.
Your choice of words can make a difference. Instead ofasking for "a reference," try asking, "Could you verify some information for me?" Staft with the objective questions: dates, job responsibilities, salary, and work up to the more subjective, open ended questions.
Design your questions in advance to be sure you get the information you need to make a decision. The working conditions and responsibilities of the co-op job could be radically different from those of the previous job. Someone who pined away in a back office could blossom at the cash register. Avoid leading questions and "either/or" questions
that practically force certain answers. Basically what you want to know is: What are the employees strengths and weaknesses? Why did s/he leave? Does her/his story jibe with the former employer's? Would you rehire?
Treat the reference checking conversation as you would an interview. Listen carefully for subtle nuances, hesitations, tone of voice. Does the other person sound enthusiastic about the applicant or just neutral? Don't jump in too quickly with your next question. Sometimes if you wait after s/he is finished, s/he will come up with more information. If you have been patient and established some rapport, you may be able to follow up on some nonverbal cues. "You sound hesitant to answer that question. May I ask why?"
Take notes, but be sure they will not be seen by the applicant. Even if the reference is favorable and you hire the person, don't put the employer's references in the personnel file, which the employee will have access to. Don't tell the applicant anything that the former employer said about her/him. That employer has taken a risk to help you make a good hiring decision. You must follow through by treating references with utmost confidentiality.
If you can't get the official reference givers -- the personnel manager or personnel department in larger organizations-- to talk candidly with you, don't give up. If the company's policy is to not give out references beyond confirmation of dates of employment, you could get back to the applicant and ask for names of immediate supervisors. You may be able to call them directly at work or even at home. The supervisor's assessment may be more valuable to you than the personnel department's anyway, because s/he has worked directly with the applicant. If the company has gone out of business, ask the applicant to track down the location of a former supervisor so that you can contact her/him.
Of course, the previous employer's opinion is not necessarily the gospel. You could be talking to the boss from hell. You have to weigh her/his comments with other evidence from the application or resume, the interview, and references of other former employers.
For applicants who have been self-employed (e.g., cleaning houses, preparing taxes), ask for the names of long term clients. For people with no previous work experience, you are forced to fall back on "personal references." Although these will probably lack the relevance of an employer's reference, try asking for the name of a teacher or head of a volunteer organization.
Reference checking by phone is vastly preferable to letters. On the phone you can ask questions, dig for more information and pick up the message in the tone of voice. Don't pay much attention to letters of recommendation addressed "To Whom It May Concern." Among professionals such letters are generally regarded as meaningless. They are often issued to people who have been asked to leave, as a sop to the employer's guilty conscience or as a way of easing the departure. Some positive reference letters are no doubt sincere, but what employer would put a negative assessment in writing for the former employee to see? And certainly no applicant will show you a reference letter containing any significant criticisms.
There is no law that you have to give out references, but there are some reasons for doing so, in spite of the risk. Of course, in the case of favorable recommendations, the risk is largely absent, and you may wish to help someone who was helpful to your business. In the case of less than favorable recommendations it seems like poor citizenship to sit by and let an unsuspecting organization in your community hire an incompetent or dishonest person, especially for a position requiring a high degree of trust or human relations skills. And from a purely self-interested point of view, you want to prevent inquiring employers from doing just what I suggested above: making an end run around your official reference givers, and talking directly to supervisors and coworkers who are untrained in the ramifications of reference giving.
The best protection against claims of defamation is to maintain complete and accurate documentation for each employee of performance appraisals, promotions, disciplinary actions and exit interviews. This documentation should be kept in personnel files, to which employees have access.