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Conducting reference checks is a very important part of the recruiting process. But it is also crucial for the candidate to ensure the best references are selected. When references are BAD, it is BAD for the candidate. And yes, bad references do occur and it is astounding when that happens. Consider the following scenario:

Jim Smith was outstanding at all his interviews. He came prepared with a professional error-free resume. He was knowledgeable, shared his experience, and had great interpersonal skills. He had a portfolio with samples of work and achievements accomplished during part-time and summer jobs, volunteer positions, and university. He answered behavioural based questions with specific well thought answers. Jim appeared to be a “star” and everyone on the interview team, including the hiring manager and human resources manager were excited to extend an offer. But wait …. references needed to be checked.

The candidate provided four references. Three out of the four references raved about Jim, giving specific examples about his accomplishments, but the fourth reference tore him to bits. He didn’t have one nice thing to say about Jim. The HR Manager was astounded and blurted out, “I can’t believe Jim used your name as a reference.”

What should the HR Manager do?

Are references confidential?  If they are does confidentiality mean the HR Manager can’t tell the candidate to take the bad reference off the list? Does that breach confidentiality? Is there a privacy issue here?

I asked several of my HR and legal colleagues what they would do about bad references and here are some comments:

1. If the bad reference was “over the top” and the other three were great, I would think that was something very strange about the bad reference. I wouldn’t think it was a reliable description of the candidate.

2. I wouldn’t tell the candidate that they received a bad reference and I wouldn’t extend an offer. One bad reference spoils the batch.

3. I would proceed with the offer. Three awesome references negate a sour grapes sounding bad reference.

4. I would tell the candidate directly that “Mr. Reference gave you a bad reference.” and then ask the candidate to explain why.

5. While I do not profess to be an expert in privacy laws, I have been told by those who specialize in the area that references can be considered personal information, and therefore under certain privacy legislation, the subject of the references (the candidate) has a right to know the content. Even if they do not have a legal right to see or hear them, unless there are other factors in play, references are not “confidential” in the sense that they cannot be shared with the subject.  (See a different opinion in 7, 8, and 9).

6. I know of many HR practitioners that will ask a candidate specifically about negative references, to give them the opportunity to explain.

7. As a general practice, a company should obtain the consent of job candidate before contacting any references. That is as far as the obligation to obtain consent goes. There is always a risk that the comments made by a reference may be negative. Most companies hope that the person giving the reference will be honest. That will only happen if the information provided by the person giving the reference is maintained in confidence.

8. If a company intended on disclosing the details of the reference to the candidate, then the person giving the reference should have been warned about that prior to providing a reference (ie. “that the information you disclose during our phone call today may be provided to the candidate”). If information from the reference is disclosed, that does not necessarily mean there has been a breach of privacy or confidentiality unless specific assurances were made to the person giving the reference. However, that type of practice may undermine the reference process.

9. There have been a number of lawsuits that involve negative references. The company that disclosed the information may end up involved in that lawsuit as a witness or even named as a party depending on the situation. While any potential risk of the company having a decision against it may be minimal, it would still be a hassle to be involved in a lawsuit.

So there you have it. Here is the approach I take:

• References are confidential and won’t be disclosed to the candidate.
• References are not kept in an employee’s file, which infers that the contents are confidential and not to be viewed or disclosed to the employee.
• Ask the candidate additional behavioural based interview questions framed specifically to get to the root cause of the bad reference.
• Ask for and conduct additional references.
• Assessments might be considered to provide more information.
• Discuss references with the hiring manager so warning signs can be caught early.
• Take a balanced approach and ask the hiring manager to base the final decision on the additional answers, all the references, the ratings made from structured interviews, and the comments and assessments from the interview team. 

Thank you to my colleagues who took the time to share their thoughts! What would you do in a similar situation? 

Best regards, Joanne  

P.S. Are you looking to be hired? Before adding a reference name to a list, contact the reference directly and ask “What will you say about me?” It doesn’t hurt to ask, and hopefully the reference will be honest enough to say, “I can’t be a reference” or use the standard “Company policy prohibits me from providing a reference.” instead of giving a BAD reference.

Photo credit: SXC – Derek Kimball