Disclosure requirements when checking an applicant's references
Question: Can an employer refuse to provide information collected from employment references to a job applicant? Is the information provided by a former employer personal employee information? Is it important to let the former employer know this information can be requested and will be disclosed on request to the applicant?
Answer: There are many questions and misconceptions regarding employee references. Many employers are so concerned about claims of defamation or “wrongful hiring” that they refuse to provide any form of subjective reference. Instead, they limit themselves to the “name, rank and serial number” approach, which merely confirms a former employee’s term of employment, position and a generic description of her job duties without commentary on her abilities or performance. In my view, this concern is generally unwarranted. Providing an honest reference, in good faith, should not, in the absence of unusual circumstances, result in liability on the part of the reference-giver.
The specific question here is challenging as privacy laws in Canada vary between jurisdictions and also between the public and private sector. Some jurisdictions have their own privacy laws, whereas others are governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA). While they may be substantially similar, there are important distinctions between them.
It is very difficult to speak in generalities in light of these differences and the uncertainty from the relatively recent introduction of this legislation. Information relating to an employee or applicant can be considered to be personal information in many circumstances. This would include references relating to them, which suggests an entitlement to copies of reference letters. However, information relating to the identity of the reference-giver may be the personal information of the reference-giver, in which case it cannot be revealed to the subject of the reference without consent.
Some jurisdictions have specifically addressed this issue. In Alberta, under the Freedom of Information and Protection of Privacy Act, a public sector employer can refuse to provide an employee with a copy of a letter of reference it received about the employee. If there is no privacy legislation that applies to a particular employer, then it is generally entitled to refuse to provide copies of references, as there is no requirement to do so.
Even the obtaining of references relates to personal information and, in some jurisdictions, if the employee or job applicant has not consented to the collection of personal information, she must be notified and advised of the reasons for the collection of the information.
Generally speaking, employers should tell job applicants their former employers will be contacted in order to obtain references and getting written consent is advisable. Employers should also allow employees access to their personal information. However, as discussed above, the identity of a reference-giver may be considered to be the personal information of the reference-giver, so care should be used in revealing information that would reveal the reference-giver’s identity. If an employee or job applicant requests copies of reference letters, it would be prudent to request the written authorization of the reference-giver(s).
If an individual is asking to see the references that were provided, she may be contemplating a claim against the reference-giver. The threat of such claims is not particularly significant, but it should be noted if litigation is commenced, relevant documents — which would include the reference in question — would have to be produced.
Special thanks are due to my colleagues, Jacqueline King and Ivan Bernardo, for their assistance with this question.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
Answer: There are many questions and misconceptions regarding employee references. Many employers are so concerned about claims of defamation or “wrongful hiring” that they refuse to provide any form of subjective reference. Instead, they limit themselves to the “name, rank and serial number” approach, which merely confirms a former employee’s term of employment, position and a generic description of her job duties without commentary on her abilities or performance. In my view, this concern is generally unwarranted. Providing an honest reference, in good faith, should not, in the absence of unusual circumstances, result in liability on the part of the reference-giver.
The specific question here is challenging as privacy laws in Canada vary between jurisdictions and also between the public and private sector. Some jurisdictions have their own privacy laws, whereas others are governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA). While they may be substantially similar, there are important distinctions between them.
It is very difficult to speak in generalities in light of these differences and the uncertainty from the relatively recent introduction of this legislation. Information relating to an employee or applicant can be considered to be personal information in many circumstances. This would include references relating to them, which suggests an entitlement to copies of reference letters. However, information relating to the identity of the reference-giver may be the personal information of the reference-giver, in which case it cannot be revealed to the subject of the reference without consent.
Some jurisdictions have specifically addressed this issue. In Alberta, under the Freedom of Information and Protection of Privacy Act, a public sector employer can refuse to provide an employee with a copy of a letter of reference it received about the employee. If there is no privacy legislation that applies to a particular employer, then it is generally entitled to refuse to provide copies of references, as there is no requirement to do so.
Even the obtaining of references relates to personal information and, in some jurisdictions, if the employee or job applicant has not consented to the collection of personal information, she must be notified and advised of the reasons for the collection of the information.
Generally speaking, employers should tell job applicants their former employers will be contacted in order to obtain references and getting written consent is advisable. Employers should also allow employees access to their personal information. However, as discussed above, the identity of a reference-giver may be considered to be the personal information of the reference-giver, so care should be used in revealing information that would reveal the reference-giver’s identity. If an employee or job applicant requests copies of reference letters, it would be prudent to request the written authorization of the reference-giver(s).
If an individual is asking to see the references that were provided, she may be contemplating a claim against the reference-giver. The threat of such claims is not particularly significant, but it should be noted if litigation is commenced, relevant documents — which would include the reference in question — would have to be produced.
Special thanks are due to my colleagues, Jacqueline King and Ivan Bernardo, for their assistance with this question.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
