Cathie's Corner Blog

(Published November 16, 2009)

I was asked an interesting question recently, a twist on a frequently asked question. While it is not unusual for an employee to ask if an employer can give a negative reference, this employee wanted to know what to do if the employer refused to confirm employment at all. Unfortunately, there wasn't much I could tell her. With limited exceptions, employers are not required to provide references, or even to confirm employment. If her employer opted not to do so, I can't think of any law that will force the issue.

What I am having a hard time imagining, though, is why an employer would refuse to confirm at least dates of employment.  While I stand firmly on the side of providing accurate, truthful information about an employee's performance in most cases, I can understand why an employer would want to limit the information they provide, particularly in the case of a marginal or poor performer. But to not even verify that the employee worked there? What possible reason will there be for that?

I can only assume that the employer has so completely bought into the idea that they can be sued for providing "bad references" that they are refusing to give any information at all. But that's shortsighted at best. I don't think the employer really thought this through if they are afraid that confirming dates of employment will get them into legal trouble.

The employee may have some recourse if she can show that the employer customarily provides references for other employees. Also, while the employee did not indicate to me whether this is the case or not, if this is happening in retaliation for her having filed a wage or discrimination complaint, the employee could file suit and be awarded damages.

Certainly there are valid reasons to limit the amount of information that is given out.  While I've already said that in most cases I believe employers should provide accurate information on employees, I do not deny that there are circumstances when limiting it to dates of employment and job title, etc., can be the wisest thing. But refusal to even confirm that the employee worked there seems to be just petty.

If you have a valid reason to believe that there might be some legal difficulties with providing information (for example, if your HR department does not know the employee personally but the manager cannot be relied upon to keep within legal boundaries of what should or should not be said), then by all means, stick to limits.  Dates of employment, salary, and job title can all be safely verified with no fear of any sort of legal issues, as long as the information provided is factual. But to refuse to even acknowledge the employment of an employee is just wrong, in my opinion. There's no justification for that.

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

(Published November 3, 2009)

In the current job market, I'm sure we're all receiving far more applications than we can use, whether or not we're even hiring.  I had a conversation with someone the other day about pre-screening these applications that got me thinking about the process.

The manager I was talking to wanted to ask a series of questions before he would even allow applicants to complete the application.  At first glance, this seemed fairly reasonable.  But after I looked at the questions he wanted to use, I had to stop and think.

The first question had to do with the applicant's willingness to clean (it's a small company where everyone has to do a little bit of everything, including cleaning).  The second and third questions had to do with shaving and haircuts.  The final one had to do with the applicant's willingness to work on holidays occasionally.

While the first question seemed fairly straightforward, I wondered what would happen if someone who was physically disabled applied.  Would they be eliminated from contention because of their inability to clean the bathrooms?  The second two had obvious difficulties; there are both medical reasons (for some races) and religious reasons why a man might not shave, and religious reasons why a man or a woman might not cut his or her hair.  The last question also raises religious implications, though not as strongly since there is no religion that would require all holidays off.

My concern was with the way these questions could be used.  It appeared that they would be used as a method of elimination — if the answers were not "yes" right down the line, the individual would not even be allowed to apply.  This has the potential to put the employer on the wrong end of a discrimination lawsuit.

On the other hand, I do recognize that employers are being overwhelmed with applications, and they need to do something to trim the overload.

So what I suggested to him was that he provide the applicants with a way to explain any "no" answers, and that he make it clear that a "no" answer to one or more of the questions would not necessarily eliminate them as a candidate.  Therefore, someone who answered, "I cannot help with the cleaning because I am in a wheelchair," or, "I cannot shave my beard because I am a Hasidic Jew," would still be able to apply, whereas someone who said, "I am not willing to help with the cleaning because that's not the job you're hiring me to do," or, "I am not willing to cut my hair because it's none of your business how I wear my hair," could be eliminated.

Is it still risky?  Certainly, it is.  I don't think the questions are a wise idea at all.  A candidate who gives honest answers that include one or more "no's" and who is eliminated later in the process for other reasons, might well believe that they were eliminated for a discriminatory reason and the employer could still get sued.  It's just not a wise set of questions to be asking.  I would imagine that most smart applicants would give the employer the answers they want to hear and then discuss any "no" answers if it appears that a job offer is forthcoming.  At least I hope they would.  It's what I'd do.

But at the same time, the percentage of people who would be eliminated by these questions and by a reason that is prohibited by law is probably pretty small.  Truth be told, there is no such thing as a risk-free method of elimination.

Just be certain, when you do any pre-screening, to keep the questions business-focused.  There will be plenty of time to address holiday policies, dress codes, or non-essential job functions as you go through the process.

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

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