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Therefore, experienced investigators and recruiters will attempt to talk with the immediate supervisors of prospective employees--the people who had an opportunity to evaluate the applicant on a firsthand basis. Regardless of company policy, it's just not realistic to believe these folks won't be candid in their responses. (Executives who believe a memo will prevent line supervision from telling it like it is likely do believe there are alligators in the sewers.)
In a company where a "dates only" policy exists and is published or known, a former employee has a reasonable expectation that this policy will be followed. When such a person is denied a subsequent job because an investigator or recruiter obtained negative information from a line supervisor or foreman, there may well be grounds for initiating a lawsuit against the former employer for violating its own stated policy. The fact that the information wasn't provided by human resources, but came from another company representative would seem irrelevant.
What is surprising is that many small businesses, particularly those with an owner-manager tend to be instinctively open and candid when inquiries are made concerning former employees. And they risk little, while acting in a socially responsible manner. It is the large corporations, with their teams of ultra conservative corporate counselors, which typically take the wrong approach and inadvertently create this unnecessary exposure.
To minimize exposure in this area we suggest the following:
Eliminate any policy which states or implies that prospective employers will only be given dates of employment; or which state or imply that no negative information will be provided to prospective employers.
Publish any such policy change in a manner where employees cannot later claim to be unaware of the change. A signed, dated receipt of the revised policy is, of course, preferable.
Fully document all negative incidents which result in termination and take and retain detailed statements from all witnesses or victims. These should be in addition to a detailed incident report.
Flag or otherwise designate this type of terminated employee's personnel files and instruct human resources that any inquiry concerning such persons must be handled by the legal department--or a specifically designated senior executive.
Often a prospective employer may not pursue the inquiry if advised that the legal department must handle the response. However, if the inquiry is pursued, the person responding will have had a chance to review the file and documentation and decide how much information should be divulged--what would be reasonable.
Generally speaking, a successful suit by a former employee would not occur if the response was true and objective. For instance, when proper documentation exists a company would be all but immune from litigation by stating, "Mr. X was terminated for physically assaulting a coworker" or "Mr. X was terminated after signing a statement that he had embezzled $20,000 and agreeing to make restitution."
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