Alive HR

Last week, as often happens, I encountered resistance while checking references on several counselor candidates. One former supervisor left a voice mail along these lines: “I can’t give references; our policy is that you have to go through Human Resources. But if I was allowed to give a reference, I would tell you that he was a top notch employee. He started as a counselor and we promoted him to a team leader. If I was able, I would give him the highest reference. So, here’s the extension to call HR.” I raised my eyebrows and chuckled.

I dialed the next number, a competing nonprofit. The supervisor steered me to HR, nervously telling me that she didn’t necessarily have any negative information, but she wasn’t allowed to talk. I left a message for the HR person and I’m waiting for a call back with instructions to proceed. The signed release is at the ready and I’m crossing my fingers the response will be a little more generous than the usual verification of name, rank and serial number.

What can I say, I’m a believer in checking references. My organization works with vulnerable adults with cognitive disabilities, and I believe we have an moral responsibility to vet the employees who will be helping them with the most intimate details of their finances, daily lives and personal hygiene. I also believe that sharing reference information with other organizations is the ethical thing to do. Along with other steps in the process, it helps protect our broader client population. And it follows the golden rule; if we don’t give references, how can we expect to obtain them from others? In addition, I believe it’s the right thing to do for the former employee who may need references to get future jobs. And finally, I think the practice helps hold employees accountable for their conduct. Once an applicant asked, “It’s illegal for my former employers to say anything bad about me, right?”  It might be better if workers know that it’s not that simple.

[Might I also add that in my industry, Maryland code stipulate agencies must at minimum request a reference from the last employer, including seeking information about any history of physical abuse. So we are mandated to seek references, and other organizations still balk. Why are so many organizations terrified by the possibility of defamation claims, but no-one seems to be concerned about negligent referral, negligent hiring, or liability when declining to fully cooperate with State law?]

Of course, I agree that companies need to share reference material responsibly and in a way that doesn’t leave them vulnerable legally. But I also think many organizations go overboard in their paranoia of being sued for defamation, as attorney Ellen Simon writes here. At seminars I’ve attended over the years, a number of other employment law attorneys have also agreed, saying “the truth is an absolute defense.” Of course they say this while also covering the basics of defamation, negligent referral, negligent hiring, and outlining how to best protecting one’s organization through policies, supervisor training and appropriate legal releases. But understandably the attorneys leading the seminars feel free to give advice more liberal than the attorneys paid to review employee handbooks.  Or maybe it’s the skittish HR department choosing the most conservative option presented by the lawyer? Who’s to say?

In my 15 years in HR, what I’ve seen is that often actual references (as in those involving performance and termination information) are officially forbidden at many or most organizations. But unofficially, supervisors, HR folks and executives find all kinds of creative backdoor ways to work around restrictions. For example, around DC, it’s common for HR managers to say, “Do you have any other candidates?” cuing the caller to a potential red flag. I also remember an exec sharing that when she’s phoned for a reference on a less-than-stellar former employee, she’ll change the subject, saying, “Let’s not talk about employees for a moment. Let’s talk about used cars. I had a car like that and it was very unreliable. I would never buy that make again.”

Brilliant! Her cleverness makes me smile every time I think of it.

It’s cute and it makes me smile and  it’s better than nothing. But it’s only partially useful, as is the “Do you have any other candidates?” approach. When you tell me that, I know there was an issue, but I don’t know if it’s a deal-breaker. Did the person abuse vulnerable adults? Neglect a few required trainings? Conflict with his supervisor? Borrow the company van without permission and total it? Embezzle thousands of dollars? Harbor philosophical differences with management? Or was the person just a poor fit for the role? Could it be that this person has learned a lesson or might deserve a fresh start, another shot at employment? Did the employee have sufficient training, supervision and support? How could I possibly tell from the veiled response?

I’m not sure that the HR people and organizations protect themselves as much as they think when they take the backdoor approach. First of all, they fail to follow the very same reference policies they’ve put into place! When the amount of information given varies widely, when analogies and similes are used, when they rely on a wink-wink, nod-nod, Good Ol’ HR Pro network, organizations on both sides of the reference equation could be on shaky ground.

Ideally, should we not consistently give the same kind and amount of information on everybody, using the same, documented standards and procedures? Should we not hold employees accountable for their actions? Should we not follow our own policies or procedures–or revise them and/or offer appropriate training  if we find ourselves sneaking around requirements intended to protect us? Otherwise, we are vulnerable to negligent referral and defamation claims. “You gave Sally a raving review, but you wouldn’t give a reference on me at all.” Or “I heard you called Tom a shiny new Lexus and me a beat-up ol’ broken-down Pinto.”

But Tom and Sally and the others won’t know, you might be saying. And it they get wind of it, you just deny it. They can’t prove it. There’s nothing in writing. Problem solved!

Call me a purist or whatever you want, but I don’t think that saying things and then denying them is not going to get the HR profession to a place of value and transparency. It’s not going to get us a coveted seat at that table. It’s not going to build trust with our employees.

I’m sure you have your own opinions and I’d love to hear them. Obviously, my industry is a bit of a niche and the realities of your workplace may be quite different than mine. Do you give references? Do you try to obtain them from others? What’s been your experience and how should HR be handling this issue?

photo by London Looks

Thanks also to Joan Ginsberg, JD, SPHR, of HRUniversity who spoke to me at length and offered context as an attorney and human resources professional.