Verbal references from past employers seem to hold more clout in many workplaces today than they have in the past.
A letter of reference is the final request made by many existing employees. However, the trend for businesses is to provide a letter of confirmation instead; delineating only the rank and file — carrying little useful commentary. As a result, oral references have taken on a more significant role, much to the chagrin of many employees. The problem with an oral reference, according to many of my own clients, is the content and the supplier can sometimes remain a mystery, effectively giving ex-employers the green light to say what they please, if and when consulted for a reference. In some cases, an inaccurate review given by a hostile ex-manager, or a human resources representative that had little or no contact with the employee, can be the straw that breaks the camel’s back when it comes to obtaining a future position. With so much depending on a strong oral reference, the question I’m frequently asked is whether or not anything can be done to determine whether an ex-employer will play naughty or nice.
Therefore, for those employees concerned about an unfavourable verbal reference, I suggest you consider the below tips.
w Seek an agreement with your ex-employer that all oral references will be consistent with the contents of a letter of reference and directed only to a chosen signatory. While a letter of reference is not mandatory, for various reasons most employers will provide one. When I act for employees, I ensure the terms of any settlement include a confirmation that oral references will be consistent with the letter of reference and given only by an individual that my client feels comfortable with. By doing so, I can confine companies to statements that are agreed upon in advance and reassure my clients what can and cannot be said by their ex-employers.
w Some of my clients have been denied positions and were virtually certain the loss had to do with a negative reference — from an unknown source. In these cases, they almost unwaveringly point the finger at an old boss, whether there is proof or not. The question I’m then asked is how can their suspicions be confirmed? If you are denied a position and you have a good reason to believe the employer was given a false reference from a source you did not consent to, you can bring an application under the Consumer Reporting Act. If successful, the employer may then be obliged to tell you the source and nature of the reference and you can finally get to the bottom of a bad reference from a mystery source.
w In those extreme cases where you learn of information about you that was untrue and damaging to your reputation, you can consider a defamation suit. Defamation is, however, very difficult to prove. You must demonstrate that the unfounded statements are conveyed, the person making the statements knew they were untrue, and, as a result, your reputation was injured or your status reduced. Ultimately, while a defamation suit may be impractical, the threat of such an action can ease your apprehensions if you’re worried about an untruthful oral reference.
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.
