Dear Working Wise:
What information can employers safely divulge about past employees if they get a call for a reference? I've heard different things about liability that have made me shy away from giving anything more than the most basic information. Signed, Afraid to Refer
Dear Afraid:
There are two separate issues regarding employee references. One concerns the privacy of the employee and the other is fear of litigation.
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An organization may collect, use and disclose personal employee information for reasonable purposes related to managing or recruiting personnel, including releasing reference information to another employer. The key is to ensure that the information is strictly limited to the work relationship.
In one case, a clinic employee disclosed to a prospective employer that the former employee "did a lot of complaining about her co-workers" and "because of her cancer she couldn't handle the work."
It was determined that the first comment did not breach PIPA because it is reasonable performance-related information. The second comment breached legislation, because it was "personal employee information".
The clinic actually had guidelines for giving references, but the employee who gave the reference failed to follow the guidelines.
Employees have successfully sued their former employers for providing bad references and some employers have even tried to sue past employers for providing glowing recommendations for mediocre employees.
In response, some employers have instructed their staff to only provide basic information, like, “Bob Smith worked for us from May, 2001 until August, 2007, as a marketing representative.”
This is likely the safest answer, but it’s not likely to help Bob get that next job. Potential employers might wonder if Bob’s performance was not up to snuff.
So, in the spirit of trying not to get sued, I am providing the following tips for general information only—consult your lawyer for legal advice.
Tip #1 — Check if your organization has a job-reference policy. If so, follow the policy. If not, you might want to create one or suggest one that specifies what information should be provided, if you need verbal or written permission from the employee, and who is authorized to provide references. Every employee should be aware of the policy and, ideally, every employee who gives references should be trained to give appropriate and legal references with confidence.
Tip #2 — Talk to the employee and get their consent before you provide the reference. Be honest with the employee about the kind of reference you will provide. They may decide not to use you if you plan to give a mixed reference.
Tip #3 — Be honest, accurate, and specific when you give the reference and stick to work-related information only. Try to give specific examples to back up your statements. Avoid characterizing the employee’s personality or sharing your opinions on their personal life. Don’t speculate, share suspicions, or provide information “off the record”. Note who called, what they asked and what you said just in case anyone asks.
Tip #4 — Do not divulge personal information that could be used to discriminate against a job applicant, including: race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status and sexual orientation. The Alberta Human Rights Act prohibits discrimination on these grounds. For more information, visit the Alberta Human Rights Commission website at www.albertahumanrights.ab.ca.
All managers want to see their past hires succeed. They feel a sense of pride that they were able to help the employee in a small way in their career path. Providing a reference is one way to do that.
For more tips on giving references, check out the How to Give a Reference tipsheet on the Alberta Learning Information Service (ALIS) website at www.alis.alberta.ca.
For more information about PIPA, visit www.pipa.gov.ab.ca and check out information sheet #5 on Personal Employee Information.
Do you have a work-related question? Send your questions to Working Wise, at charles.strachey@gov.ab.ca.
