Privacy and Employee References

The Globe and Mail newspaper has a column in which readers can send in their questions. This week's edition includes a question about checking references:

The Globe and Mail:

"Dear Susan,

Can a recruiter or potential employer contact a reference without your permission?

--MYOB

Dear MYOB,

Employers can and do, but they shouldn't. "I heard it through the grapevine" is still the anthem of talent scouts in certain sectors, recent privacy legislation notwithstanding. But asking for the straight dope without consent is risky. Not only does the practice breach ethical and legal boundaries about personal privacy, the information gleaned this way is hardly reliable. An opinion about an employee says more about the referee than the worker, according to reams of studies, and thus off-the-record telephone exchanges are becoming less common in reputable human resources circles. Without the employee's nod even something as basic as checking where a candidate is currently employed can jeopardize her career if her boss doesn't know she's looking around. So seeking the low-down behind an employee's back is bad form, possibly illegal and not exactly how you welcome a new recruit into the fold. The whole practice smells.

So what if it already happened? I'm no lawyer, but a cursory look at the federal privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), and the three provinces that have their own privacy legislation (Quebec, Alberta and British Columbia) shows that most explicitly discourage employers from disclosing information without the employee's okay. Alberta is one exception, allowing employers to collect personal information about public employees "from any party without specific consent," according to a human resources guide published on the provincial government's Freedom of Information and Privacy website and confirmed by one of the government's information officers.

But all it takes is one test case to make Canadian employers clam up forever, says Vic Catano, a psychology professor and recruitment expert at St. Mary's University. That's what happened in the United States, when a referee not authorized by a candidate gave a negative point of view that off-sided an applicant for a vacant position. The employee sued and was awarded damages, an event that cast a pall on the reference-giving world. Even if a candidate has given permission, information not germane to the job is off-limits. It's irrelevant if you curl with the candidate's father. Just the facts, ma'am. Except for checking biographical facts with the candidate's permission, when it comes to references the rule is don't ask, don't tell. "

Getting consent is always a good idea. PIPEDA only applies to employees in the federally regulated private sector (banks, airlines, etc.), but employees (potential and otherwise) are beginning to expect that employers will respect their privacy. I advise my clients to have the prospective employee sign a consent at the interview, giving permission to contact anyone who may have information that is relevant, not just their listed references. Of course, their sunday school teacher will say good things about them. The key is to get relevant information. The consent form also has to say that the individual gives consent for the disclosure of personal information from the person who is asked. Referees are well advised to insist on seeing such a consent.