The phone rings and the person on the other end of the line is a selecting official from another agency asking for a reference on one of your current employees. If the employee is a “star,” you may not have the slightest reservation about providing reference information, but if your view of the employee is less flattering you may experience “butterflies” in the pit of your stomach. If so, you are not alone.
In previous articles I provided advice for the selecting official as reference checker, stressing the importance of checking references prior to making employment offers, and on some of the common obstacles to acquiring useful information. (See “Reference Checking: An Art, Not a Science” and “Are Reference Checks Worth The Trouble“) Here, I will focus on the role of the reference provider.
In a newly-released report titled “The Practice of Merit: A Symposium,” the U.S. Merit Systems Protection Board (MSPB) advised agencies to choose new employees through “Rigorous verification and background checks.” That echoed the findings and recommendations of the MSPB Special Report that I cited in the two previous articles, “Reference Checking in Federal Hiring: Making the Call,” which provided some very useful advice to reference checkers, reference providers and applicants.
As a reference checker your goal is to obtain as much job-related information about a prospective employee as you can. When you are on the other end of that phone call, there is ample evidence to suggest that the goal is often to provide as little information as possible, thereby theoretically protecting yourself, and your agency, from potential liability. This creates a kind of “dynamic tension” between the reference checker and the reference provider, some of which is probably fueled by misunderstanding about the “rules” governing the process.
The MSPB Special Report opined that “Reference providers need to play their role to support the accurate exchange of information in reference checking discussions. They should support hiring officials’ legitimate need for information while protecting themselves from legal difficulties. They also need to be fair to well-qualified applicants, who will find it more difficult to be hired if reference providers hold back their praise and just offer ‘name, rank, and serial number.’”
Sounds logical, right? So why don’t more reference providers cooperate with reference checkers and provide the kind of information they are seeking?
Surveys conducted by the Society for Human Resources Management (SHRM) in 1998 and 2004 revealed that while many organizations are willing to provide some information about a current or former employee, “Fewer than half will discuss an applicant’s eligibility for rehire (42 percent) or salary history (41 percent). Very few will provide sensitive or judgment-based information about reasons for leaving (19 percent), job qualifications (18 percent), work habits (13 percent), or inappropriate workplace behavior (8 percent).”
I think there are two main reasons many reference providers are reluctant to provide judgment-based information:
Concern about possible legal consequences; and
- Concern about possible “social consequences” – i.e., the information getting back to the subject of the discussion and that person getting angry and filing a grievance or EEO complaint, and/or confronting the official.
At a minimum, the relationship between the supervisor and the current or former employee may be adversely affected.
The legal consequences issue was largely defused by the MSPB Special Report, which stated the following:
“A common misconception among those asked to provide reference information is that discussing performance or job-related behavior of an employee is not legal. This misconception has caused many reference providers to follow a minimalist policy of providing only basic facts, such as dates of employment and job titles…
Contrary to popular myth, former employers can, in fact, provide detailed information about applicants without substantial risk of incurring legal liability. Federal employees who serve as reference providers, as well as those in the role of reference checkers, enjoy qualified immunity from suit as long as they are acting within reason and not violating any clearly established rights of the applicant. A reference provider may discuss an applicant’s performance and workplace behavior with prospective employers because doing so satisfies a legitimate business need and is presumably within the scope of the reference provider’s official duties.
In addition, Federal reference providers and reference checkers enjoy certain protections under the Federal Tort Claims Act (FTCA)…This doesn’t mean that reference providers should deliberately engage in these practices. But the FTCA does provide some legal protection for Federal agencies and their representatives when an applicant accuses a former employer of intentionally harming the applicant’s employment chances by providing a prospective employer with an unfavorable description of past behavior and performance.
These protections do not, however, give former employers free rein to talk about former employees in any way they please. Qualified immunity can be lost if the reference provider behaves inappropriately.”
What does all of this mean? Reference providers have significant discretion in providing information to reference checkers, but still need to be careful not to act outside the “scope of their authority.” Providing factual information is “safe,” because truth is the first defense against allegations of character defamation. For example, the reference provider could tell the reference checker anything that is “on the record,” and not prohibited by law (e.g., the Privacy Act) or regulation from being disclosed. Examples of information that would be useful to a reference checker are the applicant’s most recent performance rating or the fact that he/she was suspended for three days for misconduct.
When you venture beyond fact to opinion, one piece of advice is to be consistent. For example, if you have given the employee an outstanding rating three years in a row but tell the reference checker that the employee isn’t a very good performer, perhaps even that you would not rehire her/him, such inconsistency between the information that is on the record and your opinion could come back to haunt you. If the employee later gained access to that reference check documentation, i.e., after not being selected and filing a grievance or EEO complaint, the information could reflect poorly on your willingness to rate employees accurately or even on your truthfulness.
You might even lose qualified immunity under the Federal Tort Claims Act if it is found that you behaved “inappropriately” and/or intentionally harmed “the applicant’s employment chances by providing a prospective employer with an unfavorable description of past behavior and performance.”
And consistency works both ways: If you give a poor performer a glowing reference in an effort to get rid of him/her, it is highly likely that you will damage your credibility in the Federal community as the new supervisor spreads the word about being led astray.
Based on the importance of providing reference information to selecting officials, and the potential consequences, I see nothing wrong with asking the reference checker to provide you with an advance copy of the questions she/he would like you to answer. You should solicit advice from agency experts, such as HR, EEO and Counsel’s office, if you have any concerns about the information you are being asked to provide. With understanding of the process and good faith on both ends of the phone call, the objective of getting valid, job-related information about a candidate should be achievable.
