In-house lawyers aren’t HR specialists

COMMENT

While

chairing a conference

l a s t w e e k , I w a s approached by the director of human resources of a major Canadian chartered bank. He was incredulous at my comments regarding references, noting his in-house counsel had taught the precise opposite.

It was not surprising. Most lawyers are not specialists and have little knowledge of the details of employment law. Many practitioners of human resources obtain their information either from non-expert, or uninformed, lawyers or from magazines published in the United States, or from foreign corporate parents, operating under different legal systems.

Here are the more common misapprehensions, starting with this one on references: 1. When asked for a reference, it is legally dangerous to do more then confirm positions and dates of employment. This may be true in the United States but, in Canada, the courts provide a qualified privilege for employment references. This means, if you say what you honestly believe based on your knowledge and experience, you cannot successfully be sued for libel even if what you say is inaccurate.

From a motivational standpoint, it makes little sense to provide the same reference whether someone does a good job or a poor one. Given how few motivational tools there are in the managerial arsenal, why give up the incentive of positive, or potentially negative, references?

The bigger risk lies in saying positive things about someone when you know them to be untrue. You could be sued for negligence if the employee is hired based upon that reference and then commits the same transgression in the new job.

Generally, honest references avoid legal difficulty.