Dear Working Wise,
What information can employers 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.
February 22, 2017
There are 2 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 purposes related to managing or recruiting staff, including releasing reference information to another employer.
The key is to ensure the information is strictly limited to what is reasonably required to establish, manage, or terminate a work relationship or manage a post-employment 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 included personal information that was unrelated to the work relationship.
Employees have successfully sued their former employers for providing bad references. In response, some employers have instructed their staff to only provide basic information, like, “Bob Smith worked for us from May 2007 until August 2013 as a marketing representative.” This is likely the safest answer, but it’s not likely to help Bob get that next job.
So, in the spirit of trying not to get sued, the following tips for general information only—consult your lawyer for legal advice.
- Check if your organization has a job-reference policy. If so, follow the policy. If not, you might want to create one that specifies what information should be provided, whether you need verbal or written permission from the employee, and who is authorized to provide references.
- 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.
- 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”.
- Don’t divulge personal information that could be used to discriminate against a job applicant such as race, religion, disability, age, sexual orientation, etc.
For more tips on giving references, check out the How to Give a Reference tip article.
For more information about PIPA, call the PIPA Information Line at 780-644-7472 (dial 310-0000 first for toll free) or visit pipa.gov.ab.ca and check out their advice on disclosing personal employee information.
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