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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     10 February 2010

Privacy of Law and Employment

Truth is not always a defense. Some states recognize common law as it applies to privacy. Employees can sue employers for disclosing to large number of people true but embarrassing private facts about the employee. In invasion of privacy suits truth is no defense.

One case involved a supervisor in a shouting match with an employee. The supervisor yelled out that the employee’s wife had been having s*xual relations with certain people. The employee and his wife sued the employer for invasion of privacy. The jury found the employer liable for invasion of the couple’s privacy. It awarded damages to both of them, as well as damages for the couple’s additional claim that the supervisor’s conduct amounted to an intentional infliction of emotional distress.

Supervisor reluctance: Furthermore, realistically, many supervisors don’t want to damage a former employee’s chances for a job; others might prefer giving an incompetent employee good reviews if it will get rid of him or her. Even when checking references via phone therefore, you have to be careful to ask the right questions. You must also try to judge whether the reference’s answers are evasive and, if so, why.

Employer guidelines: The net result is that most employers are very restrictive about who can give references, and what these people can say. As a rule, employers should ensure that only authorized managers provide information. Other suggested guidelines for defensible references include. Don’t volunteer information. Avoid vague statements and do not answer questions such as would you rehire this person? In practice many firms have a policy of not providing any information about former employees except for their dates of employment, last salary and position.

However, note that not disclosing relevant information can be dangerous too. In one Florida case, an employee was fired for allegedly bringing a handgun to work. After his subsequent employer fired him (for absenteeism) he returned to the second company and shot a supervisor as well as the human resources director and three other people before taking his own life. The injured parties and the relatives of the murdered employees sued the original employer, who had provided the employee with a clean letter of recommendation. The letter stated his departure was not related to job performance, allegedly because that first employer didn’t want to anger the employee over his firing.

Making Background Checks more useful: So what is the prospective employer to do? Is there any way to obtain better information? Yes.

First, include on the application form a statement for applicants to sign explicitly authorizing a background check, such as:

I hereby certify that the facts set forth in the above employment application are true and complete to the best of my knowledge. I understand that falsified statements or misrepresentation of information on this application or omission of any information sought may be cause for dismissal, if employed or may lead to refusal to make and offer and / or withdrawal of an offer. I also authorize investigation of credit, employment record, driving record, and once a job offer is made or during employment workers’ compensation background if required.

Second, since telephone references apparently produce more candid assessments, it’s probably best to rely on telephone references. Here use a form, and remember that you can probably get more accurate information regarding dates of employment, eligibility for rehire, and job qualifications than other background information (such as reasons for leaving a previous job).

Third, persistence and sensitivity to potential red flags improve results. For example, if the former employer hesitates or seems to qualify his or her answers when you ask, would you rehire? Don’t just go on to the next question. Instead try to unearth what the applicant did to make the former employer pause.

Fourth use the references offered by the applicant as a source for other references. You might ask each of the applicant’s references, Could you please give me the name of another person who might be familiar with the applicant’s performance? In that way, you begin getting information from references who may be more objective, because they weren’t referred directly by the applicant.

Fifth, try to ask open ended questions, such as, “How much structure does the applicant need in his / her work?” in order to get the references to talk more about the candidates.


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