Job separation: most people cringe at the very idea, although most of us have experienced it. And to be fair, it’s not always a bad thing. Oftentimes, it occurs for a positive reason; the advancement of a career or a movement to “greener pastures.”
Unfortunately, there is also the circumstance where a separation is initiated by the employer; a lay-off, firing or downsizing. And let’s be honest, these are generally unpleasant for the suddenly-out-of-work employee. However, some employer-initiated separations come with a “separation agreement” (sometimes referred to as Termination Agreement, Severance Agreement or Separation Agreement and General Release), which specifies the terms of your termination and severance package. And depending on the circumstances of the separation, these packages can be quite generous. So, when handled correctly, this agreement can be a useful and positive tool for the employee.
Don’t miss the key phrase here: when handled correctly. Employees should be aware that these separation documents are drawn up by the employer, and generally favor them; they are also a contract in which the employee relinquishes their legal rights. As such, they need to be reviewed very carefully.
To protect yourself, you must be very careful with the wording of various documents. Have the key details spelled out legally, by an attorney, and make sure you understand the ramifications of the agreement. This is of particular importance if you sued your former employer and are now negotiating a separation package.(Note: In most states, you will not want to use the word “severance” or “severance agreement.” Severance is a term used by both federal and state governments to denote a specific type of payment. It may adversely impact your tax, unemployment and other benefits. A labor and employment attorney can advise you on this subject.)
One key thing that is often overlooked in the negotiation of these packages is the rules about how this (now former) employer will react to a request from a potential employer for reference information. This is an important issue; don’t let it fall through the cracks!
So, what should the legal agreement with your former company say about its obligations to provide references to potential employers? (Need specific legal advice and direction here? Allison & Taylor can arrange for an attorney to write a custom clause for your particular situation.)
Here are some tips on what a former employer should NOT be allowed to do or say when asked for reference information:
1. Make a reference to legal action. “Hold on a moment, let me get the legal file to see what I am allowed to say.” There should be NO reference whatsoever that the former employee may have sued – new companies do not want to hire someone who sues former employers.
2. Nothing at all. They MUST return a reference call. After all, what does it say when a former company, boss or the HR department does not return a reference call? It’s a very strong hint to a potential employer that there were issues or problems with the employee.
3. Have a bad attitude, or any other type of inflection when interviewed. No negative sound bites. (See some of the unbelievable things former employers have said here.)
4. Offer any other opinions whatsoever. When providing a reference, they need to stick to the facts.
5. Offer any type of personal conversations within the industry. “Off-the-record” conversations which malign a former employee must be taboo as it can be considered “blackballing.”
Here are some tips on what employers/reference providers SHOULD be saying and doing per a legal agreement.
1. They should, in a polite and friendly way, verify title, dates of employment and salary for prospective employer. This verifies the information that is required on most employment applications.
2. They should courteously decline to provide any additional information. When asked other questions, they need to politely say, “Our corporate policy does not allow me to give any additional information.”
Taking the time to clarify these reference requirements in your separation package may make a huge difference in your ability to get a job in the future. Also, don’t just assume that the company reference policy will be followed; in many cases, it is not. And a legal agreement on reference conduct can mean the difference between a lukewarm or negative reference, and one that is positive and professional.
Allison and Taylor, Inc. FAQ:
Question:
Will my employment references know that I am having them ‘checked out’?
Answer:
Absolutely not. At no time do we reveal who has hired us to do this research.
Question:
Isn’t it illegal to ask about things other than title and dates of employment during a reference check?
Answer:
No, and that is one of the interesting things about references. It is a private conversation between two people, your past employer and a prospective one. Anything can be said, regardless of what the laws are. Go to your local legislator’s office. They can find the most recent laws for you but remember, every road we drive on has a speed limit. When we are running late, if a police officer is not in sight, we speed. There is not a reference police officer watching over you past employer. Essentially, your past employer or reference can take 5 minutes on the telephone with a total stranger and either increase your chances of obtaining a new position or absolutely ruin them.
Question:
Can I have additional or specific questions asked of my employment references?
Answer:
Custom reports are available for an additional fee. If there is any possibility of litigation, we suggest not to alter our normal course of business as this jeopardizes our unbiased research.
Question:
Who should I list as a reference?
Answer:
When compiling a list of employment references, try to look at it from the prospective employer’s shoes. First, you need responsive people that can confirm that you worked there, your title, reason for separation and other basics. Additionally, you need to list people who can vouch for your level of responsibility and performance. Also consider any party to whom you reported. These individuals do not necessarily have to be named on your list of references, but be assured, if you reported to them, they are likely to be contacted by a prospective employer.
Question:
What if my reference no longer works for my previous company?
Answer:
It is in your best interest to locate your previous supervisors and colleagues. We are not a detective agency, and neither are the prospective employers who will be considering you. Allison & Taylor can simply call your past companies and ask for forwarding information, just as a prospective employer would, but realistically this is likely to go nowhere. You could hire a private investigator or try to do this on your own. Call the company yourself, maybe someone you know is there and they would release the information to you. Can you call former colleagues or clients? The internet is a great source of information, try your own search. The bottom line is that in order for you to compare to your competition for other positions, you need to have your references and past supervisors in order.
Question:
If my employment references are bad, what can I do?
Answer:
A bad employment reference can be strategically dealt with depending on what is actually being said and to what degree things are explained. You need to first determine what is being said before you can develop an appropriate strategy. Depending on what the research reveals as well as the laws within your state, you may be able to take legal action. We suggest taking our report to an employment attorney for proper legal advice. Allison & Taylor, Inc. will be available to supply our research evidence and to testify in support of your situation should the need arise. Although we will not make a referral to a specific attorney, we do suggest finding one through NELA – the National Employment Lawyers Association. Additionally, very good legal advice and information can be accessed at US Law Books.
To find out more about reference checking, please visit Allison & Taylor.