Obtaining and Accessing Reference Checks

The listing of a reference on a job application is implied consent for the board of education (board) to contact the reference. It is also consent for the reference to release what would otherwise be personal information.

If there are references that the board would like to check that are not listed by the prospective employee the board can ask the employee for consent to contact the reference.

If the employee does not agree to provide consent the board is entitled to draw inferences from the refusal of the employee to provide consent. The best practice is to discuss with the employee the reasons for the refusal and determine whether or not the explanation provided by the employee is acceptable.

In some circumstances the board may still wish to seek information from the reference. This would be rare and only when necessary to confirm the suitability of the candidate. This would most likely be the case where the reference is a previous employer in the education field. In such circumstances it is not the role of the board to give advice to the party being asked for a reference. It will be up to the reference to decide whether to not it is able to share information without the consent of the employee.

If the previous employer is subject to LAFOIP, section 10(e) of the LAFOIP Regulations will apply. It provides that personal information may be disclosed without consent.

If the previous employer is not covered by LAFOIP it may still be able to release information under the privacy legislation to which they are subject. If not, the former employer can be asked questions such as “Would you rehire this employee?”

Access to Reference Checks

The employee does not have the right to see reference letters provided by previous employers or other references. Section 30 of LAFOIP specifically provides that opinion material collected “explicitly or implicitly in confidence” for the purpose of assessing suitability for employment does not have to be released to the individual. It would be good practice to create a script for reference checks that would state that the reference was given in confidence. Documenting that the information was agreed to be shared in confidence will help demonstrate the intent of the parties.

Even though it is not required to disclose the record, the board can exercise its discretion and allow the employee to see the record. In such cases the employer will want to consider such factors as:

• the nature of the communication;
• the policies and procedures of the board;
• any reasons given by the employee for the request;
• the wishes of the person giving the reference;
• the impact of the release of the record on the confidence of other persons providing references.

If at any point the employee becomes involved in litigation concerning employment such as a grievance, board of reference or a lawsuit where the information is relevant, reference information will be required to be released to the employee.