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.
In Alberta, the Personal Information Protection Act (PIPA) protects privacy in the private
sector, including the collection, use and disclosure of personal information.
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 tip sheet 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. Charles Strachey is a manager with Alberta Human
Services. This column is provided for general information.