Is a Job Reference a Legal Document

Consider bias and discrimination through referrals and be vigilant. Otherwise, you could be involved in a defamation and/or discrimination lawsuit involving the candidate and the reference they wrongly trusted and provided to you. If an employer has discriminated against an employee in a dismissal, he may have the opportunity to file a complaint with the Labour Court. However, this must be started within 3 months of the date of discrimination. For example, a negligent hire would hire without verifying and verifying their credentials and/or conducting background checks. While the vast majority of employers take the provision of references seriously and provide accurate and useful documentation, misleading or erroneous references can be costly. A candidate may need more training than their reference suggests, or may be completely inappropriate for the job. A derogatory referral can significantly affect a person`s career prospects. Given the vulnerability of workers and potential employers to inaccurate references, it is perhaps surprising that employers have few legal obligations to provide honest references. DavidsonMorris Human Resources Specialists support employers in all aspects of employee departures. Working closely with our employment lawyers, we provide comprehensive advice on how to develop policies and documentation to minimize legal risk while ensuring business objectives are met and employee engagement is optimized. Talk to our experts if you need help and advice. But before you try to ask for references on your candidate, save time and ask yourself this important question: What is your company`s policy on professional references? As long as you don`t ask for information that belongs to a “protected class” or is restricted by your state`s laws, you can ask for a lot of references about your candidate.

Criminal convictions cannot be referenced and only unused convictions relevant to the job can be described in detail, for example if an employee has been convicted of theft at work. For information on convictions and non-convictions, please visit the gov.uk website. If an employer is reluctant to give a positive reference, they may be tempted not to give one at all. Sometimes this is the best option: the employer does not openly criticize a former employee, the employee is not burdened by a bad report, and potential employers can draw their own conclusions. When you`re trying to rank a candidate based on their references` comments, it`s frustrating to get a stonewall response from those testimonials saying they can`t give you the information you`re looking for. In this case, it is important to find the restrictions on the information that references can legally provide in your state. Now you know you need to look for references to avoid negligent hiring, and you know you need to collect a reasonable number of references to account for bias, but how do you get enough feedback? If a candidate has worked for a company with a strict “no reference” policy, here are some possible workarounds you can use to gather information about the candidate: ALWAYS try to get enough references to identify a trend in the candidate`s performance and act as a buffer against biased and discriminatory references. There are two main reasons why a potential employer asks for a reference: When providing references, an employer should be aware that the incumbent has an obligation to the prospective employer and its outgoing employee. The obligation imposed is due diligence and the provision of truthful, fair and non-discriminatory information.

This is a brief summary (also known as a “reference to facts”) of the employee`s time spent at a company, such as the job title and the data that was worked on it. You can provide legal facts in response to a referral request. These facts may include if your former employee failed a company drug test, the results of which have been officially documented. In this case, you can legally declare that your employee was fired or fired because they tested positive on a company-owned drug test. Other facts may include being late for work every day, which can be officially documented by timesheets or punch cards. As a former employer, you can legally discuss truths about your former employee`s job performance. These truths can be positive or negative, but they cannot be personal opinions. For example, you can indicate that your former employee consistently submitted projects late or did not meet their quarterly goals, as these actions can be documented and records can be created if legal action arises about your statements. On the other hand, if you indicate that you think your former employee is lazy or incompetent and therefore submitted projects late, you may be forced to answer for these statements in court.

ALWAYS have a standardized reference review process that ensures that all candidates` references are asked the same questions and that their answers are recorded completely and accurately. Once you know what information references can legally provide, you can tailor your reference interview questions to these limitations and avoid wasting time on questions that cannot be legally answered. An employer may also consider including a disclaimer at the end of the referral stating that they assume no liability for losses incurred by future employees/employers who rely on the reference. In practice, however, this is only protected to a limited extent if the disclaimer is “reasonable”. It should also be noted that the disclaimer is the company`s policy and is in no way the result of any employee behavior or misconduct. An employer may not provide or require a reference containing any of the “protected characteristics” and such provision/request is illegal. The protected characteristics are as follows: This is also known as a “character reference” and includes: If a candidate can create a complete list of performance evaluations, these documents can be used in the same way as a reference. Let our Employee Handbook Generator help you. It includes legally binding guidelines and the latest state and federal requirements. Recruiters spend an average of 72 minutes per candidate tracking references over the phone. The result of their exhausting phone time? Feedback from an average of only 2 references. No wonder recruiters are known to avoid phone references when they can.

Former employees of your candidate`s employer of record can usually tell you everything you want to know about the candidate. In addition, if an employer has agreed to make a declaration as part of a settlement agreement, it must ensure that it does not deviate from it by following a regulated process indicating who will provide the reference and how it will do so. For example, if an employer withdraws the job offer because the person has a disability, as described above, and this was mentioned in the referral, a legal action for unlawful discrimination can be brought. Knauft recommends the following practices, especially for employers in multiple states, to avoid legal liability when providing employment references: Employers should retain control over the information published by their organization, Rennekamp said. You can do this by limiting who can provide a reference or what information can be provided. “However, we all need to keep in mind that all employers need information about past performance and behaviors to determine if a person is a good fit for the job,” she added. As mentioned earlier, many employers have a policy of simply giving a reference with very basic information, some going so far as to confirm employment dates and job title. The general rule is if an employer has provided routine references on a regular basis in the past. The safest option is to make at least one rudimentary declaration for every employee who leaves the company. This reduces the chances of being accused of victimization. A former employer may legally refuse to provide information about an employee other than their official title and date of employment.

While this is legal, it is generally considered as bad as a negative review, according to reference website References-Etc. If you choose to decline to answer certain questions asked during a referral request, you may apply this policy to all references you provide and not to a single person. References-Etc states that “there have been cases where it has been successfully argued that an employer has discriminated against an employee because it does not apply the same policy to all its employees.” Once you`ve learned what questions a reference can answer, ask questions like these to find the essential information about relevance, job performance, and fit that references can provide: It`s also a good idea for employers to require all applicants to fill out an application form — in addition to or instead of a resume — and include a waiver for employers and other entities. from which they can request a reference. Rennekamp said. The main federal laws that apply to benchmark examinations relate to discrimination and defamation. […] Ask your friends who work in an organization about open positions, as employee references are strongly encouraged by many organizations and if you join the company, your friend […] In general, employers are not required to provide a reference for an employee who leaves the company, unless there is a contractual agreement that they are required to provide one, or if they operate in a regulated industry.