Have you carved your pumpkin? Gotten your costume? Bought enough candy? Tomorrow is that holiday that people either love or dread – Halloween. My five-year-old is just beside herself she is so excited to be a vampire bunny – costume is complete with fangs, ears, tail, cape, and parsnips (they look like drained carrots, you know). Sometimes I think I’m too practical for Halloween – dressing up in a costume and knocking on other people’s doors never appealed to me, even as a child. As an adult, I’ve come to realize that perhaps Halloween is about embracing those things that scare us so we won’t be afraid any more. Thus in the spirit of the holiday, I write to help you embrace an often feared event for human resources professionals – the request for a background check.
I’ve found that requests for reference checks are most frightening when they come from an employee who was terminated and you either (1) are still holding your breath that you don’t get a lawsuit or (2) you exhaled when the statute of limitations had run. This isn’t because you did anything wrong, but because the employee was just a troublemaker and you assumed that he would cause as much trouble in leaving as he did while employed. Most employers are concerned because they believe they can be sued by the employee if the reference they give causes the employee not to get the job. Let me put that fear to rest. In North Carolina, pursuant to North Carolina General Statute § 1-539.12, an employer who discloses information about a former employee’s job history or job performance to a prospective employer upon the request of the prospective employer is immune from civil liability and is not liable for civil damages for the disclosure or any consequence of the disclosure. This immunity specifically covers comments made concerning the suitability of the employee for re-employment and the reasons for the employee’s separation from employment. So, employers have immunity for truthful references based on their perceptions of the employee’s work performance.
The larger question for employers to answer is whether they want to stand in the way of the troubled employee getting another job and/or whether they want to warn the next employer. First, as I have often advised many of you, former employees are less likely to sue you if they have moved on with their lives. The best way for an employee to move on is to find another job. Standing in the way of the employee finding another job may mean that you are more likely to be sued because that employee has not been able to secure employment and move past the experience of being terminated. Second, just because the employee was a problem for you does not necessarily mean the employee will be a problem for the next employer. An employee becoming “branded” as a troublemaker can be caused by many things outside the knowledge or control of the employer: personal problems at home, a personality conflict with a co-worker, or lack of interest in the type of work the employee is performing. Third, and perhaps most important, as with almost everything else in human resources, you need to be consistent in the type of reference check you give for your former employees. It is not advisable to provide only dates of employment for one employee and then provide a horrific reference for another. Such behavior may lead to questions of discrimination or of falsity in providing the reference check.
Another nightmare for employers is the rogue supervisor who receives a request for a reference check and has never been instructed by policy or otherwise how to handle it. Without a policy on the subject, supervisors may feel free to give reference checks on employees and provide information that deviates wildly from the information that the human resources professional would provide.
Without a standard policy on reference checks, employers will likely give good reference checks for some employees, neutral ones for others, and bad ones for yet other employees without considering all of the consequences of doing so. As a result, I recommend the employers have a policy providing which employees may give reference checks on behalf of the company and directing all employees who receive requests for reference checks to turn those over to the designated individuals. Further the policy should state that the employer only provides dates of employment, last position held, and confirmation of salary. Some employers also choose to provide information regarding the individual’s eligibility for re-hire. As noted above, this qualifies for the immunity, but frankly, it may be the piece of an otherwise “neutral” reference that prohibits the employee from finding another job and finding better uses of time than filing a lawsuit against you.
The bottom line is that having a neutral reference check policy is a good practice and makes good sense. But if a supervisor gives one of those painfully truthful references, you can rely on an employer’s immunity in North Carolina for giving accurate reference information.
Now I must go check the refrigerator…I think I may hear a strange sucking noise coming from the crisper…