A recent article, “Overcome your past and land a job,”on MSNBC.com caught my eye. The question that intrigued me was from a former employee of a private sector firm who had been fired for “sexual harassment.” The basis for the question was that a potential employer, in doing a background check, was told that the person had been fired and why.
An attorney with whom the author of the article checked advised the questioner that “Since you were not convicted of a crime, your former employer has no right to tell anyone that you were fired for sexual harassment. There was no trial. There was just an accusation…That means, what your former employer is doing is ‘totally defamatory and libelous.’” I questioned the “truthiness” (as Stephen Colbert of the Colbert Report would say) of that advice, but checked Black’s Law Dictionary to validate my understanding of the terms defamatory and libelous.
Black’s definition of defamation is “the act of harming the reputation of another by making a false statement to a third person.” (emphasis added) If what the former employer was telling the potential new employer about the individual was true – the questioner admitted in framing his question that he had been fired for sexual harassment – I don’t see how that response could be found to be defamatory or libelous.
While I think the attorney’s advice was off-base, the article itself addressed an issue – reference checks – that I think is an essential part of the hiring process in Federal agencies, but one that is often neglected, misunderstood, or both.
If you are a supervisor, there are at least three ways in which you may become involved in the reference checking process – as a solicitor of information on a prospective employee, as a provider of information about a current or former employee, and as an applicant. In this article, I will focus on the supervisor as the reference checker.
My rationale for encouraging selecting officials to check a potential employee’s references – and I use the term here in the broad sense, meaning not just people the applicant has identified as references but also present and former supervisors and present and former co-workers – is that most of the selection process is based on the applicant’s self-evaluation, such as in documenting experience, education and training on the application for employment and in addressing the knowledges, skills and abilities (KSAs) identified in the vacancy announcement as being critical to successful performance in the job being filled.
The job interview process allows for interaction and the selecting official can ask all best-qualified candidates to answer a series of job-related questions, but, as industrial psychologist Tom Janz found, the best predictor of future performance is past performance in similar circumstances. And the best way to assess that past performance is by talking to people who are familiar with the applicant’s work and behavior, such as current or previous supervisors, as well as co-workers.
If reference checking is really an important part of the selection process, OPM would have published guidance for agencies on how best to do it. Right? Well, no, and most agencies haven’t issued such guidance either. But fortunately, the Merit Systems Protection Board (MSPB) has helped fill the breach. In a September 2005 report titled “Reference Checking in Federal Hiring: Making the Call,” MSPB addressed this complex and multi-faceted issue thoroughly and provided to the President and the Congress some very useful findings and recommendations.
One major recommendation was for agencies to use OPM Optional Form (OF) 306, Declaration for Federal Employment, early in the selection process. While MSPB said that by applying for positions individuals give “implied consent” for the agency to do reference checks, the OF-6 explicitly gives the agency permission to do so. The form contains the following statement in a section titled “Certifications/Additional Questions”: “I consent to the release of information about my ability and fitness for Federal employment by employers… and other authorized employees or representatives of the Federal government.” The applicant has to sign and date the form just below that paragraph. MSPB also encouraged agencies to document in their vacancy announcements the fact that there will be reference checks.
MSPB’s extensive review revealed a great deal of inconsistency among agencies as to the practice of reference checking, and observed that many agencies have no reference check strategy and provide little or no training to the employees who are checking references.
Among the other problems MSPB documented was that reference checking raises legal concerns in the minds of some selecting officials and others involved in the process. MSPB noted that “A recurring misconception among those asked about reference checking is that discussing performance or job-related behavior of an employee is not legal.” The report went on to provide assurances that it is “legal to request information about an applicant’s past job performance,” noting that reference checkers “in general have a qualified immunity against charges of invasion of privacy so long as they restrict their inquiries to job-related issues.”
Litigation, mainly in the private sector, has “spooked” a lot of organizations and officials who would be asked to provide information about a candidate. For example, if you are checking references on an employee who worked in the private sector, you are very likely to be referred to Human Resources (HR) and that office is probably only going to confirm that the applicant worked there, the time period involved, and possibly the position(s) held. It is usually easier to acquire background information in the Federal sector, although former supervisors may be reluctant to provide negative information about a candidate if they think that person might be able to access their comments.
Another situation you may run into as a reference checker is a “clean record.” The MSPB report noted that “A ‘clean record’ generally refers to an employee’s official employment record that has been altered in a manner favorable to the employee as a result of a settlement agreement between the employee and an employer.” Often, such a settlement agreement is reached after an agency has taken action against an employee, up to and including removal, and the employee has filed an appeal, grievance or EEO complaint. In many cases, the settlement agreement provides that all reference checks on the employee are to be funneled to one specific official, usually in the HR office, and that official is authorized to provide only the most basic information about the employee, such as employment tenure and position(s) held.
You may also run into such issues as a former supervisor’s refusal to provide any information on a candidate or the applicant stating that she/he does not want the agency to check with his/her current supervisor. You cannot “force” a former supervisor to provide relevant information, and it is understandable that applicants might not want their supervisors to know they are seeking other employment.
However, the “bottom line” for me, when I was a selecting official, was that I would pass on a candidate unless I could gather enough reference information about the prospective employee to be comfortable that I was making the best possible selection. And unless the candidate was already on my staff, I would always do a reference check. So, answering my own question, I strongly believe that reference checks are worth your time and trouble as a selecting official. I think the risk you take by not doing them thoroughly and effectively is making a bad hire. As always, I recommend that you get advice from your HR staff, and, if you have legal questions, that you talk to your Counsel’s office.