Friday, July 30, 2021

"How to protect yourself against a disparaging reference"/ "A tragic, cautionary tale about reference letters"

Aug. 19, 2017 "How to protect yourself against a disparaging reference": Today I found this article by Daniel Lublin in the Globe and Mail:


Daniel Lublin is a partner at Whitten & Lublin, Employment & Labour Lawyers.

“If you don’t have anything nice to say, then don’t say anything at all” is a maxim that applies equally to law as it does to life – except when it comes to providing a bad reference for a former employee. In two recent court cases, employees found this out the hard way.


Adam Papp was let go as an economist at Stokes Economic Consulting Inc. The next day, Mr. Papp e-mailed the president, Ernest Stokes, asking to use him as a reference for future employers. Mr. Stokes gave Mr. Papp the green light.

Soon after, Mr. Papp applied for a lucrative opportunity with the Yukon government as an economic statistician. His interview went well and he was set to get the job, once his references checked out.

Relying on Mr. Stokes’s assurance, Mr. Papp listed him as a reference. However, when Mr. Stokes was contacted, he suggested that Mr. Papp was fired in part due to a “performance and attitude problem” and that he had a chip on his shoulder. Mr. Stokes indicated there was “no way” he would rehire Mr. Papp. As a result, Mr. Papp was disqualified for the role.

Mr. Papp sued Mr. Stokes and the company for $500,000 for defamation and punitive damages claiming that the poor reference was unfounded and cost him the new job. 

However, the law of defamation provides employers with several strong defences. First, if disparaging statements are true, then a former boss or employer is entirely justified in telling the truth. 

Second, where untrue or otherwise defamatory statements are made in the context of an employment reference, unless the statements were made maliciously or recklessly, the law provides immunity to the party making the statements.

Mr. Stokes testified that, after he agreed to act as a reference for Mr. Papp, he learned from other employees that Mr. Papp could be difficult to work with. Therefore, the judge found that his statements (which were otherwise defamatory) were substantially true. Also, since Mr. Stokes made the statements during a reference check, he could not be successfully sued for slander.

In another very similar recent case, an individual sued her former boss for defamation because a number of statements he made about her during a reference check caused her new employer to fire her.

Although the statements were indeed defamatory, they were also made in the context of a request for a formal reference, and therefore, enjoyed immunity from a successful lawsuit. 

In order to get around this hurdle, the plaintiff alleged that the statements were motivated by malice, saying her former boss harboured a desire for revenge against her based upon events where she claimed to embarrass him or had shown him to be wrong. But the judge did not believe this explanation and found that the defendant wasn’t motivated by any spite or ill-will and that her lawsuit could not succeed.

To the chagrin of many ex-employees, as it currently stands, the law of defamation in Canada makes it nearly impossible to successfully sue a former boss or employer for slander when disparaging and even untrue comments are made in the context of a request for a reference. 

Collectively, many employers will breath a sigh of relief, knowing they can safely hide behind a broad legal shield should they want to freely speak their minds about ex-employees, but only if first asked to do so as part of a reference inquiry. Especially for this reason, departing employees – and their lawyers – will want to take care to ensure a greater level of protection.

 Here are some of my own tips:

Pin the employer down. 

As part of any severance negotiation that I handle, I routinely demand that employers provide a letter reiterating some of the positive statements from past performance reviews and some major accomplishments, if not a full letter of support. 

I then require that the employer agree to take steps to ensure that any reference request be directed solely to the person who signed that letter, who must agree not to state anything inconsistent. If it turns out that a subsequent reference check goes awry, then at the very least you can sue the employer for violating the settlement, if not defamation.

Choose your references wisely. 

Former employees have almost complete control over who acts as their reference. If you are unsure what a former manager is going to say, then you’re better off not taking a chance. 

Secure the commitment of someone who can speak to your skill but who you can trust is not going to disparage you.

Save your performance reviews. 

A successful defamation suit over a reference inquiry requires the defamed employee to prove recklessness, malice or ill-will. If a former manager’s critique is inconsistent with his or her own prior written performance appraisal, or one that he or she saw and approved, then not only will his or her credibility and own competence be questioned, malice may well be inferred.



Jun. 16, 2018 "A tragic, cautionary tale about reference letters": Today I found this article by Howard Levitt in the Edmonton Journal:


Bad unions and timorous employers — a lethal combination, literally.
Management at the nursing home where she worked had concerns about Elizabeth Wettlaufer’s state of mind for years before they finally fired her. In August 2011, it was recommended she take a leave of absence because of her conduct. She refused and the nursing home did not press the issue. 
The result? She went on to kill three patients, having already killed two in 2007. In August 2012, management considered reporting her to her licensing body based on “unfitness to practice,” which would have ended her career. Again, it backed down. She killed two more patients before her dismissal in February 2014.
Why did the company not proceed earlier? Because it knew that the irresponsible and trigger-happy union would grieve. Carressant Care felt it could not afford to pay the legal expenses of fighting the grievances — and potentially also pay Wettlaufer back pay if it lost the arbitration. 
These were funds it required for its patients, it claimed. When Carressant finally fired her, she had so many instances of accumulated misconduct that, when the home sent in the termination form to the College of Nurses of Ontario, it ran out of space on the form.
Predictably, the union grieved her dismissal. Rather than fighting it, Carressant Home paid Wettlaufer $2,000 and gave her a letter of reference. What did the nursing home write about its in-house serial killer? That she was a “good problem solver with strong communication skills” and further lied that she had “left to pursue other opportunities.”
As well as being an object lesson as to some of the difficulties with unionization in this country, this is a cautionary tale about letters of reference. If she had not been arrested and charged with first-degree murder and other offences, she doubtless would have found another job and, based on her pattern, continued her killing spree. 
Then, the new employer and the families of the other victims would have had an excellent case against Carressant and the individuals who provided and authored the false reference. It might even have an action against the union for conspiracy for its participation and co-operation in this sham.
Employers should be cautious when providing false references. They are prepared for the very purpose of being relied upon. When they are false and damages result, there are legal consequences.
Carressant Care might have avoided much of this by reasonable due diligence. Wettlaufer had twice been to rehab for alcohol and opioid addiction.
It is often too easy to resolve disputes in part through a letter of reference, but the consequences can be very significant.
If an employee deserves a positive reference, by all means provide one. The court can impose damages against employers who refuse to provide a deserved reference in the context of a dismissal case. 
However, if an employee deserves a negative reference, silence can be golden.
• Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.
Twitter.com/HowardLevittLaw
http://business.financialpost.com/executive/in-wettlaufer-killings-we-can-fault-the-union-and-the-nursing-home-howard-levitt#comments-area

There are 3 comments:

Shannon Mitchell:

So yeah...it's the union's fault..for..existing?

Oh, and lets not forget that none of this has anything to do with the murders themselves. I sincerely doubt either the union or the nursing home would have backed her if they had any idea what was going on.

Just a thinly veiled cheap shot at unions in general. Nothing to see here, folks.
Karen Chandler · 
Works at Film & TV Industry
 
Agreed. I'm tired of reading 'union-blaming' articles as if the employer has no part to play. Union contracts are referred to as 'Collective Agreements' for a reason. If the employer doesn't follow the collective agreement regarding disciplinary issues of course the union is obliged to support their member. The union didn't force the employer to write what appears to be an almost glowing recommendation - a letter detailing length of employment & not much else should have been sufficient.
Like · Reply · 2d

Ken Barnes
not sure it's the union's job to support "no matter what" -even the militant BC teacher's union did not support a teacher who said she was too injured to wok as a teacher was on disability, and opened a studio teaching yoga
they can't put one person above the whole membership's interests
Like · Reply · 2d



This week's theme is about reference letters.  However, I only have enough articles for 2 blog posts:


"Ensuring proper accommodation for transgender workers"/ "After gender transition, a woman in the workplace sees how the other half works"



"Give references the attention they deserve"/ "My offer was rescinded after a reference check. Now what?"




My week: 



Jul. 13, 2021 "Instagram influencer, 32, dies taking photo at popular waterfall": Today I found this article by Emily Lefroy on Yahoo News:



An Instagram influencer has reportedly died while taking a photo at the edge of a popular waterfall in Hong Kong.

Sofia Cheung, 32, was hiking with friends at Ha Pak Lai park on Saturday (local time) when they stopped to take photos at a popular scenic lookout. 


Ms Cheung was posing for a photo on the ledge of Tsing Dai stream near Yuen Long, when she lost her footing and and fell nearly five metres into the pool below, according to The Sun.



Her friends called emergency services and Ms Cheung was rushed to a hospital in Hong Kong, but was declared dead on arrival.

Her social media page lists hiking, kayaking, exploring, outdoor activities and photography as main interests, as well as stating: "Life should be fun not dumb."

The influencer's last photo, posted on July 9, was captioned: "Better days are coming: they are called Saturday and Sunday."



Instagram influencer, 32, dies taking photo at popular waterfall (yahoo.com)



My opinion: I have seen and heard about people trying to take pictures and getting hurt or killed.  Please be careful.



Jul. 15, 2021 "Lotto Max $65,000,000 ticket winner was 'almost homeless' and wants to help other military veterans": Today I found this article by Elisabetta Bianchini on Yahoo News.  This is a positive news story:



Former member of the military who suffered a traumatic brain injury, Jansen Ng of East Gwillimbury, Ont., has charitable plans for his $65 million Lotto Max jackpot win from the July 6 draw.

The 41-year-old occasional lottery player bought a Quick Pick ticket at Marina’s Express Mart on Leslie St. in Sharon, Ont., while he was playing Pokémon Go.

"I had heard on the news that the jackpot had been won in my local municipality of York Region, but it didn’t really click that it could be me," Ng said.

"A few days after the draw, I went to check the ticket on a ticket checker and the message said, ‘Please See Retailer.’ I thought the ticket checker was malfunctioning and decided to check the ticket at home on the OLG Lottery App."

When Ng saw the "Big Winner" message on the app he was in disbelief and kept checking it on other devices. He finally went back to the retailer with the ticket and that’s when he truly got excited.

The first person Ng told about his win was his pastor. 

Ng wants to continue to support charities and is exploring ways to set up not-for-profit foundations. 

"I have travelled extensively over the years, saw much poverty and want to try to make the world a better place with some of this money," he said. "Lottery winnings used strategically and intentionally can impact the community far beyond just a simple donation."


Lotto Max $65M ticket winner was 'almost homeless' and wants to help other military veterans (yahoo.com)


Jul. 24, 2021  "Woman said to be the oldest nurse in the U.S. retires at 96": Today I found this on the National Post.  This is heartwarming:

Seven decades after her career began, Florence “SeeSee” Rigney, a nurse in Washington, has decided to hang up her scrubs once and for all. Last week, after a lifetime spent tirelessly in service, the woman said to be the oldest working nurse in the U.S. retired at age 96.

Rigney originally planned to retire 30 years ago, when she was 65, but that only lasted about six months. She returned to her beloved post, working at MultiCare Tacoma General full-time and only switching to part time shifts in the last couple of years, the hospital said in a news release.

“I don’t like to sit around – I’ve always got to have something to do. That’s my nature,” says Rigney. “I don’t know exactly what made me want to become a nurse, but it was something that I always wanted to do. I love to interact with patients and give them the help that I can.”

Woman said to be the oldest nurse in the U.S. retires at 96 | National Post


"Why a first-time parent decided to adopt a 20-year-old": I found this article by Ariel Fournier on CBC News.  This was published on Nov. 18, 2020: 


Shannon Culkeen met her future "kiddo" when she was working as a mentor to youth transitioning out of homelessness in Peterborough, Ontario. 

She remembered Cheyenne as a tough teenager with a regal stance, who was willing to threaten the life of anyone who dared touch her bag of Cheetos. 

Shannon would take Cheyenne on long drives, getting to know her better. She found out about her goals, her taste in hip-hop, her affinity for decorative pillows covered in glitter. 

They kept in touch. 

Shannon was there for Cheyenne's high school graduation and her first powwow dance. 

She supported her in decisions about post-secondary school and through a medical crisis. 

While filling out an application to become a foster parent, it occurred to Shannon that she had become more than a mentor to Cheyenne. The form asked if she had any other children and she thought, "Oh no, I think maybe I do." 

They moved into places a block away from one another. They adopted a puppy named Bruno together. And they continued to take daily drives to talk about life and their future plans. 

Cheyenne Marilyn Marie Kirk Jacobs-Culkeen turned 20 in October. In a few months, she will mark another milestone, with a legal letter (or a notice for a court date) to confirm she is legally Shannon's daughter. 

Why a first-time parent decided to adopt a 20-year-old | CBC Radio

Jul. 29, 2021 Clarice: Last week I watched the last 8 of the 13 episodes of this show. 
This show was average.  There wasn't a lot of action.   

Hannibal: I would rather watch this show.  I saw the first season and a half on Netflix last year.  I stopped because my fall TV shows came on and I watched another show on Netflix.

However, I checked and the show was removed.  I sent to Netflix to get them to put that show on their website.

The Republic of Sarah: I have been watching this show (4 episodes) for the past week.  This is average.

A Million Little Things: I will now be watching this show.  I watched a few of my recordings here and there.
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"Give references the attention they deserve"/ "My offer was rescinded after a reference check. Now what?"

Nov. 11, 2017 "Give references the attention they deserve": Today I found this article by Eileen Dooley in the Globe and Mail:

References are a slam dunk. These are people who will sing your praises, people you can depend on, people who will say whatever it takes to help you. By the time employers are calling references, you've made it and you're starting to prepare your letter of resignation. But not so fast.

Underestimating the reference process is a common mistake people make, at all stages in their careers. 

From putting references directly on a résumé (no) 

to handing out reference lists randomly (no, no!), 

compromising the validity and integrity of your references can greatly diminish your chance of landing the role – especially if the employer is checking more than one candidate's references.

A reference list is private and personal and it holds private, personal information, including contact details, titles, your relationship with the person, etc. References are intended to speak highly of you, in a thoughtful and intelligent way, complete with knowledge about how you work and what you have done.

They will validate what the employer already knows, but may also uncover information that was not discussed in interviews.

The people on your list are an essential part of your personal marketing plan – so give it the attention and care it deserves.

Gather an inclusive list

Make sure your master list includes a variety of people and relationships, such as managers, co-workers and subordinates. List different industries, roles and markets if you can. 

 Make sure these are people who can talk intelligently about the work you do and what you are like to work with. They should be able to answer all questions thoughtfully, with as much detail as possible.

Provide a useful list to the employer

Nothing upsets an employer more when doing a reference check than when the people on the list are unable to answer questions because they either have not worked with you recently or haven't worked with you in the capacity that you are being considered for. Make it easy on the employer, and yourself, by providing relevant references.

For example, if you are being interviewed for a procurement specialist role, include the name of a supplier you worked with, or a co-worker that you worked on a project with. And skip the character references (friends you have not worked with). They are rarely called. 

 Make sure your list includes the reference's name, title, company, phone number and e-mail address. Do not include mailing addresses. And, most importantly, add one sentence explaining how you know this person.

Inform your references

Tell your references that you provided their name and contact details for a job opportunity. Tell them who will be calling and what that person's title/relationship is to the job. Do this each time you provide someone with their contact information. 

 Nothing irritates a reference more (especially me) than an unexpected reference-check phone call. It looks equally bad when your reference starts asking for clarity on whom the employer is calling about and for what role.

Prep your references

Tell your references what you want them to say. Do not make your reference do any work. 

 Send them talking points – things you know the employer may ask because they came up in the interview process more than once. Refresh your reference's memory on what a terrific employee and colleague you are/were. Send them the job posting you are being considered for. Make everything as easy as possible for your references.

Follow-up with your references

If your reference was called, find out what questions were asked and what the answers were.

You may be surprised by some of the responses, especially if you believed him or her to be an excellent reference. If you have not heard from your references, call them to see if they were reached by the employer and, again, ask them how they answered the questions.

This is a good way to assess whether to use these references again, or to seek out others.

Stay on guard throughout the reference process to ensure nothing compromises the professionalism you have illustrated thus far. Your references are an extension of you and the last step before landing that job offer. 

 This is not the time to rest easy or stand down – if anything, it is the time to concentrate on this final, crucial detail that will make or break the interview process.

Calgary-based Eileen Dooley, vice-president of VF Career Management, is a career-transition specialist.


My opinion: These tips were helpful.


Nov. 20, 2017 "My offer was rescinded after a reference check.  Now what?": Today I found this article in the Globe and Mail:
THE QUESTION


In February, 2011, I was terminated with cause by an employer of 24 years. I then worked with an insurance company for six years until a change in management resulted in me being let go without cause. This past October, a large financial institution offered a position, pending a satisfactory background check. 

 The offer was rescinded following the check, though it would not disclose how or where the negative information was discovered. Both previous employers confirmed contact, but said they would only confirm that an individual had worked at the organization, and tenure of employment. What should my next steps be?


THE FIRST ANSWER



Julie Labrie

President, BlueSky Personnel Solutions, Toronto



Many organizations make it a policy to only confirm past employees' job title and tenure for reference checks – regardless of positive or negative work histories. This doesn't stop some people though, from asking for more intel off the record, and those conversations do sometimes take place, even though they shouldn't. 

 Ultimately though, if there is no proof of unlawful wrongdoing, this all falls under the realm of speculation.


My recommendation: Put this experience behind you, and move on with your job search, unfazed and more determined. Maintain that positive outlook and don't let this one situation get you down. 

 Besides, there are companies out there that don't conduct reference checks when making new hires. Your tenure at both companies is impressive. So leverage your strengths and showcase your work accomplishments with confidence.


Lots of people experience difficult circumstances work-wise and bounce back, and you undoubtedly can, too.

THE SECOND ANSWER


Greg Conner
Vice-president and corporate secretary, BC Transit


Small consolation, however, this is not all that uncommon and there are definitely actions you can take to mitigate the impact of a reference that is less than positive. There are many reasons such as the one you outlined why one might not get a good reference from a past employer, even if its stated practice is to provide only role and duration of employment.


First, if you know that the official reference will be neutral at best, be upfront and let the recruiter know why and offset that with references from previous clients, colleagues and other managers who can provide a personal reference for you. 

 My advice from long experience is to ask specifically, "Would you be willing to provide a positive reference?"


To have past circumstances impact future opportunities isn't really fair, especially when they are not of your doing, so provide relevant positive references as a counterpoint.


I would also ask your two previous employers to provide written references, which you would then provide to the recruiter. That will often avoid the off-the-record comments it appears may have happened in your case. 

 Human Resources should be willing to provide those as it will want to avoid the legal liability that could result from a manager making negative comments about your employment.


Best wishes to putting this behind you and building positive references for your next job.

https://www.theglobeandmail.com/report-on-business/careers/career-advice/my-job-offer-was-rescinded-after-a-reference-check-now-what/article37020050/

Mrswillibobs
2 days ago


Speaking from a HR perspective, the issue could have possibly been the ‘terminated with cause’ after 24 years. Knowing how sure an employer has to be to terminate any employee, it would certainly leave me wondering what an employee could have done that a company would risk a wrongful termination lawsuit with 24 years of service involved. That could lead to a substantial payout depending on a number of factors under common law.


Don.Adams
2 days ago


No one owes you a job or a good reference. A job is simply a buy/sell arrangement ... you offer to sell your time and experience, the employer decides wether to buy or no.


duali
2 days ago


The Globe and Mail would be better off having a lawyer answer these questions. Some of the responses could land this publication in hot water.


divadabz
22 hours ago


Really? This is an anonymous comment board - follow any "advice" here at your own risk.


app_65772297
2 days ago


I was just terminated without cause after a good performance review from my supervisor. I have been with this large company for just over 1 year. The reason I was given was that “ you don’t fit in”. My supervisor was on holidays when I was terminated by her superior.
Any suggestions on what to do next?


On-Line Reader
2 days ago


a) Start looking for another job. 

b) You could talk to an employment lawyer and see if you have any basis for demanding additional compensation over and above whatever you received.

c) You may be better off not working there.


Basinview1
2 days ago


As far as I know., The Supreme Court of Canada has at least one ruling on whether employers are required to provide an honest work reference. That ruling was in favor of an insurance broker who was terminated even with a strong sales history.

  This occurred in the early 1990s, there may have others afterward. While the legal justification for not providing a true reference is murky, primarily because the lawmakers go out of their way to allow employers to protect their business under the guise of acting in the best interests of the company, often regardless of the cost to the worker and the truth. 

 The suggestions offered in this article are immature and underestimate the impact that dishonest employers have on workers. This workplace issue is even more important today given the recent cases of sexual harassment and assaults linked to employment security. One way to insure an honest employer is to ensure workers have greater protection either under the law or through union involvement.


SHB
2 days ago


http://toronto.citynews.ca/2017/04/20/ontario-court-dismisses-lawsuit-over-bad-job-reference-lawyers/


RRDL
2 days ago


It's also in the delivery. The former employer can be neutral in terms of information but not neutral in how he delivers that neutral information.

And, if companies really and truly only gave neutral information, potential employers wouldn't be checking references.

The reality is that your past follows you.


On-Line Reader
2 days ago

I never got references from "the company". I always got them usually from the people I worked for or co-workers. You probably have a pretty good idea that a particular manager isn't going to give you a good reference.

  So think about it and try and find a substitute where maybe they weren't "your boss", but you did a fair amount of work for them. 

As for working at a place for 24 years and being fired "with cause", well what was it? How serious? I'd guess it might have been a "personality clash" with a new boss. You probably need to come up with an explanation for that without getting into details or getting emotional. 

And in 24 years, you must have accumulated some accomplishments you can talk about. 

One way around a short period of employment that didn't work out is simply omit it from your resume. But 24 years is a rather long period to drop.


Left of Right
2 days ago

The off-the-record words that will guarantee you no getting that next job:
"High Maintenance"
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