For many recently dismissed employees, letters of reference are invaluable when it comes to securing another job. On the flip side, however, letters of reference can be just as important for prospective employers when selecting which candidate should be offered a position.
I often counsel companies to thoroughly review a candidate’s letter of reference as an employee’s prior performance is usually indicative of future results. Employers should carefully determine how they solicit and contact references and if references are given, they should be verified. With that said, employers need not hire Sherlock Holmes to uncover every skeleton in the candidate’s closet. Statistically, most employees are dismissed for reasons unrelated to poor performance.
When it comes to checking references, I recommend that employers consider the following:
•Ensure a job application form seeks candidates’ authorization to solicit references from previous employers. Red flags are raised where candidates refuse to consent and former employers may feel more comfortable being candid where the ex-employee consented to their opinion being sought. For positions where there is no formal job application, employers should create a written consent form to provide to candidates at the first interview.
•Where a credit check is necessary, notify and obtain authorization from the candidate. I am familiar with at least one decision where an employee sued an employer for invasion of his privacy rights because the employer had performed a credit check without his consent.
•Employers who ask for references can be sued if those references are not properly verified. Where the failure to check references places an employee in a position to commit a preventable impropriety had the reference been checked, the employer can be sued for the acts of that employee.
•When checking references, avoid seeking information that is prohibited under human rights legislation such as age, race, record of offences or disability. Even if certain questions may be permitted where they relate to a necessary job requirement, employers can avoid allegations of discrimination.
•Create a paper trail. I recommend employers document every step of the reference checking process to defend against any allegation that an employee did not receive a position for any improper purpose.
•Use common sense. Exercise caution if previous employers refuse to provide a reference or hide behind a company policy mandating their refusal. Even if a policy is in place, most employers can comment favourably where the employee is deserving.
Daniel A. Lublin is a lawyer and employment law expert. He can be reached at dan@toronto-employmentlawyer.comor you can visit him on the web at www.toronto-employmentlawyer.com.
