Employment References – What would you do in this case?

Eddie
Eddie (Photo credit: walliscottage)

Michele Sommer posed this interesting case study on LinkedIn’s ‘Employee Relations Forum’ on 01.25.13.  Here’s her post:

“Chris is the Operations Manager for a package delivery firm, and he terminated Eddie, who was a driver delivery person. Eddie was terminated for driving while under the influence, as well as picking up young girls for sexual purposes. Chris has received a call from a company wishing to hire Eddie.  He planned to give the standard response that company policy would only allow confirmation of dates of employment and position held.  However, Chris was informed that the position required the driving of a school bus and included overnight trips.  Chris is now unsure of how to respond.  Does he stick to company policy and provide dates of employment only and hope that Eddie doesn’t repeat his behavior, or if he does, that his new employer doesn’t come after the firm for not fully disclosing the information they had?  Or does he give the potential employer the real reason Eddie is no longer with the firm and take the chance that Eddie won’t sue?

There are ways to mitigate the risk of each option, yet most companies have a strict policy that will allow providing only dates of employment or position held.  What is your company policy?  What ways does your company mitigate risk?  What would you do in this particular case”?

Responses to Michele’s post included:

–  indicate that the employee is not eligible for re-hire – it’s honest, and though it does not say why, it mitigates some risk, though larger more risk-aversive companies won’t provide this information

–  another replied that since the new position requires Eddie to drive a school bus, this falls under DOT regulations, and Chris might be required to divulge this information.

–  one technique which has been used is to say, “While I can’t share the reason that Eddie left, I can confirm whether what he told you was accurate.”  Then if they say anything other than the real reason that Eddie left, they can say, “No.  That’s not accurate”, and leave it at that.

–  one replied that the DUI might be a matter of public record if it involved a citation/conviction, so the prospective employer should be doing its due diligence.  This same person added, “As for the sexual purposes point, since he will be involved with minors who are under the care of a public agency (school district) the question for me is do the needs of public safety for minors outweigh his need for privacy.  I’ll let the lawyers deal with that one”.

–  one piece of advice offered (and the HRMeister couldn’t agree more with) is that Chris should seek the counsel of Human Resources and general counsel before he answers any inquiries from Eddie’s prospective employers.  And most importantly, is the question as to whether he should be answering any questions at all, given company policy.

–  others wonder whether the company contacted the Police on these matters, were the girls ‘under age’, did the company conduct an investigation, has he lost his driver’s license, etc.

–  finally, one replied: “…telling the prospective employer that you need to check before you can answer this or that question or to refer them to HR (with no other detail as to what the issue might be) should be enough of a hint that they need to probe further (unless they need a piano to fall on them)”.

the HRMeister finds this to be a difficult case study.  On the one hand, if the company has a reference neutral policy, Chris (or anyone else) would not provide any employment-related references.  On the other hand, is whether the company has any moral or ethical obligation to answer any of Eddie’s potential employers’ queries with fact-based answers irregardless of whether Eddie finds out, and possibly sues the company for providing any information which may prevent his employment.  The intention being, to possibly prevent any future instances of his past behavior.

There is no easy answer here.  All companies should conduct thorough background checks on prospective hires.  That may be enough to mitigate any risk of Eddie repeating his misbehavior.  Following your company policy with regard to providing references may be the right answer.  If in doubt, consult with Human Resources, inside general counsel, and possibly, outside general counsel to come up with the best recommendation on how best to handle this case.

Thoughts?

Good luck.

theHRMeister    

“Why can’t I just terminate him”?  A Case for Creating and Reviewing Documentation

Documentation!
Documentation! (Photo credit: WGBH.org Development Blog)

How many times have we heard that same question?  OK.  Maybe we won’t answer that question.

The HRmeister recommends that we take a deep breath and exhale before moving forward with an employee termination.  First, we will need to do some research, and perhaps, even conduct an investigation.

Deborah J. Muller writes, “Documenting an investigation is one of the most critical, but often overlooked, elements of an investigation. Proper investigation documentation can be used as a key tool for legal defense and often can mean the difference between winning or losing an employment-related lawsuit”.

In her same blog post, Deborah offers her “Top Tips for Creating and Reviewing Documentation”.  Included in her tips are timely reminders to be consistent, quote exactly as much as possible, don’t use buzzwords, be clear about the sequence of events, document significant body language, stay factual, be clear about conclusions and recommendations, and re-read before you submit, among others.

To the extent we heed this sage advice, we will be doing a favor to the employee, the organization, and ourselves.  Though most of us are likely employed at will, i.e., we can be terminated for any or no reason, we will likely arrive at better outcomes and mitigate unnecessary risk with impartial, well documented investigations.  It takes time to perform a thorough investigation, but it’s an investment that will pay off.  In addition, we need to ensure that we’re following any applicable HR Policies, including any established corrective action procedures, as well as assessing whether there may be any FMLA or ADA implications.

See?  It may not be so easy to answer that question.  If we do our due diligence, then we’ll be better positioned to determine whether it makes good business sense to terminate or not.

What do you think?

The HRmeister

References:

Deborah J. Muller, “Top Tips for Creating Investigation Documentation”, Published September 21, 2012