There was a time in my life when I was a mediator for the Equal Employment Opportunity Commission (EEOC). Though this agency was supposed to handle employment issues based on discrimination, if you worked there long enough you will eventually find out that the discrimination charge was simply a cover for interpersonal disputes. One of the things that surprised me the most when I first started working at the EEOC was the fact that employers would willingly pay thousands of dollars to a former employee to “encourage” them to drop the issue. However, any request by the employee for a future reference or a simple recommendation letter was almost always a sticking point.
At first I could not understand the problem. I mean seriously why not just agree to provide a “neutral” reference for the employee – you know, one that provided their name, job title and dates of employment. As Suzanne Lucas confirms,
“six labor and employment attorneys their opinion and all six said that should be your general policy, especially for bad employees… As Jon Hyman said, if simply confirming dates and titles sends the message that this employee was terrible, why risk a lawsuit by giving details?”
But after listening to the employers who are in the middle of an intense dispute with someone they deem to be a "bad" employee, the thought of providing a reference without giving any future employer some insight about the problems they might face just rub them the wrong way! For them, it is almost like they are being dishonest. Lucas perfectly encapsulates this feeling when she said, “you want a reference on one of my former employees, I'm going to tell you exactly what I think. And, furthermore, since I don't work for that company any more, there's not any policy that is going to hold me back.”
Despite the personal feeling of many managers and supervisors, many companies have taken their attorneys’ advice and will only provide neutral references for all (both good and bad) of their employees. This is because it, “makes great legal sense. You're only giving documented, truthful information. There is no reason anyone can come back and say you defamed them.”
Lucas, however, disagrees with this policy and she gives 5 reasons why you should abandon it:
1. You can only control HR. Lucas believes that employers or recruiters can reach out to individual managers who will provide them with a more accurate account of the employee’s work history. In my personal experience, this argument only works with large companies. For small businesses, the owner is involved in everything so he would ensure that the neutral reference policy is enforced.
2. You hurt good and bad candidates. Lucas believes that though the policy is neutral reference for everyone, most managers use it for bad employees. So neutral reference has become a code for someone with an unsatisfactory work history. So, if your company provides neutral references for everyone, then some good employees will get hurt. I totally agree with Lucas on this one.
3. It's rare to have a truly bad employee. Lucas believes that maybe the issue is not about the employee being “bad” but just not a good fit with his former employer. Instead of focusing on a generic question about the former employee's personality, get prospective employers to focus on asking about whether or not said employee has the core skills for the job for which (s)he is applying. That way, you could answer truthfully without divulging interpersonal issues.
4. You ask for references when you hire. Leeds thinks it’s hypocritical for you to only provide neutral references while you will probably only hire people that can provide “good” references.
5. You're not properly educating your managers. Leeds believes that though you may have a policy of neutral references on the books, none of your managers will really pay attention to this because it is not a core part of their jobs. So, if they are periodically asked to give a reference, they won’t follow your policy and you won’t even know about what they said unless your company is sued. Once again, I believe this is not an issue for small businesses where the employer is involved in everything.
So, do I agree with Leeds that you should get rid of the neutral reference? On paper, my answer is no. I believe that you should hand out a neutral reference but include an invitation to talk more about an employee’s work history if it’s a “good” employee. However, you would provide a generic neutral reference (without any invitation to talk) if the employee was unsatisfactory. This was the approach we used at the EEOC and I still think it is quite effective.
