If you are involved in the hiring process or are simply pursuing other employment opportunities, then you would perhaps know some of the challenges with obtaining a reference. Although references are critical to the hiring process, many organizations are reluctant to offer them. As job hunters anxiously reach out to former employers, mixed views continue to circulate on the legal ramifications involved in reference checks. Since both employers and formers employees are at a disadvantage, it’s time to clear the fog and get the facts.
Why both Employers and former Employees are Frustrated
Although conducting a reference check is often recognized as an important aspect of the hiring process, it is not unusual to find both organizations and job hunters frustrated. The problem is many employers worry that participating in a reference check may have legal implications. As such, some employers have taken the decision not to provide references. Concerned about a defamatory lawsuit, some organizations are prepared to offer only employment verification.
Many job candidates deserving of a positive recommendation are shortchanged when organizations stop at verification of employment details, often indicating “no comment” when asked for further information. As many organizations struggle to hire high-quality persons, evaluating the reliability, qualification, abilities, skills and job-fit of candidates continue to be difficult. How does this growing trend of non-involvement in reference checks impact organizations? In many instances, several under-performers and unfit candidates receive placement in organizations, simply because the full story was never told.
How Employers Can Protect Themselves
What many organizations are unaware of is that there is protection from legal action for employers if references are done truthfully and without malice. In two recent cases from the Ontario Superior Court, Papp v Stokes Economic Consulting Inc., (Papp) and Kanak v Riggin, (Kanak), employers were not found liable, although their references included defamatory or negative statements. The defenses of defamation in these cases resided in qualified privilege, and a proof of justification (truth). In essence, if a negative statement is found by the court to be true and given without malice then an employer is cleared of liability. Additionally, where defamation is made in a reference an employer may be absolved if there is a situation of qualified privilege.
Given the above cases, it is important for employers to note that with proper information, verification and objective communication the risk of defamation can be removed.
Takeaway Lessons & Why You Should Share Employment Information
Hiring the right person for any position, particularly for roles where the vulnerable population is served, is an important decision with far reaching implications. Organizations need to establish the procedures to properly conduct reference checks and remove the fears.
Your participation is critical to reduce the occurrences of the wrong person slipping through the doors of an organization. When one considers the horrors of the Elizabeth Wettlaufer case, where she was able to move from one long-term care home to another in part due to a lack of references, it becomes obvious that screening is more than just employment verification. It can be argued that organizations have a moral obligation to provide references, where failure to warn of employee misconduct and termination can put people in danger when that person moves on to their next place of work. To this end, conducting reference checks remains an essential process toward establishing truth and suitability in candidate screening.
We Can Help
Pesce & Associate can help in establishing procedures for proper reference checks. Get onboard in learning the best practices in conducting reference checks. For more information, please visit our website at www.pesceassociates.com or contact Elizabeth Hill, Managing Partner, atehill@pesceassociates.com or 416- 491-1501 extension 23.
