What does the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) say about employment information?
Most employment related information falls outside the scope of the MFIPPA (Section 52(3)). Notwithstanding this section of the legislation, institutions are expected to follow the spirit of the Act which includes protecting and respecting employees’ privacy by requesting consent to contact current and former employers for the purpose of obtaining reference information.
The Reference Consent form has been designed to protect the privacy of the candidate as well as the referees. The candidate must provide consent for each individual referee. A blanket release form is not appropriate.
References may be requested in writing, or may be received verbally on the telephone. If taken over the phone notes must be made of the questions asked and the answers provided. Information that is given in a reference, whether oral or written must be recorded and forms part of the documentation considered in the final selection process.
The referee may request a copy of the consent before disclosing any performance information relating to the candidate. These forms should be emailed or faxed. The contact information of the other references given must be removed (blacked out) before mailing a copy of the consent form to the referee.
How do you reassure referees who are concerned about other legal implications of giving references?
Note: also refer to next section on reference giving.
You are encouraging employers to provide useful information that will contribute to the selection decision. Reassure the referee that you are not seeking extensive information about the candidate but want only work-related information on the candidate's skills, knowledge and performance related to job requirements of the position to which they are applying.
Explain that it is the City of Toronto's policy to conduct references prior to hiring. If there is reluctance to release information about a candidate, reassure referees they should not be concerned if the information provided is consistent with the following principles:
- information is given in good faith and without malice
- information provided is accurate, based on fact and not on hearsay or rumour.
- Observations of candidate's performance are open and honest.
If request, send (via e-mail or fax) all referees the signed consent of the candidate.
Provide the referee with the description of the job for which the candidate is applying, if requested, call in advance to state that you are sending the above information and arrange a mutually convenient time to call for the reference.
Why check references?
It is important to be as informed as possible before making selection decisions. Reliance on the screening and interview processes alone results in decisions based largely on information supplied by the candidate. Research shows that the best predictor of future performance is past performance. Reference checking allows you to:
- verify information supplied by the candidate
- obtain concrete information on the candidate's actual work performance, skills, competencies and work relationships from people who have worked with the candidate over extended periods of time
- seek further information on any specific concerns that arose during the different stages of the selection process
- assist in providing a more holistic picture of the candidate to facilitate a balanced final hiring decision.
Who should be contacted for references?
The common practice is to ask candidates for names of both current and former supervisor(s) to whom they have reported. Depending on the type of job and whether the candidate(s) have work experience, you may wish to seek references from any or all the following:
- volunteer organizations
For external hires, a minimum of two reference checks will be completed. For internal hires, at least one reference is required.
If a candidate refuses to include the names of his or her current or former supervisor(s), he or she should be asked the reason. If you wish to seek references from these individuals inform the candidate that any issues of concern raised by him or her will be taken into account. If the hiring team thinks that they cannot consider the applicant without a reference from the current supervisor that will need to be communicated to the applicant.
If the candidate is currently employed and has not told his or her employer that he or she is looking for work, carefully review the possible impact so as not to endanger the candidate's position. In this situation, consideration could be given to other possible referees such as previous supervisors.
Members of City of Toronto Council are not permissible referees unless they come within the accepted categories i.e. where the Member of City of Toronto Council has been an employer, teacher or supervisor of the individual applicant. Letters of support written by Members of City of Toronto Council may not play a role in the process of hiring for an already advertised position or in determining which resumes are forwarded to the hiring committee. Letters from Members of City of Toronto Council that are part of the file for advertised positions or unsolicited applications are removed from that file by Human Resources.
When should reference checking be done?
Reference checks should be done only for the finalists in a competition after the final assessment process has been completed.
If there is only one qualified or clearly superior candidate for a position, it is still a requirement to check references. The information you gather will either reinforce your conclusions or may provide additional information that may make you review your decision.
In internal bargaining unit competitions, the selection decision must take into account the provisions of the applicable collective agreement, e.g. there may be several qualified candidates but there is a requirement that seniority may be a deciding factor. In this situation, check the references of the qualified candidate(s) who are being considered for the job.
- C.U.P.E. Local 79 - Article 15: JOB POSTINGS
- T.C.E.U. Local 416 - Article 19: JOB POSTINGS
Any reference information collected must be documented and incorporated into the hiring file in keeping with the Hiring File Documentation Checklist. Note: At the end of a competition if candidates ask to see reference information they should be advised that they must obtain the consent (signed and dated) of the referee(s) before the information can be disclosed. This information is not available through Freedom of Information requests as most employment related information falls outside the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
What questions do you ask?
Reference questions should be prepared in advance and should be relevant to the bona fide requirements and competencies of the job.
When hiring for management, supervisory or professional positions, many questions are based on the City's Foundation, Leadership and Job-specific Technical competencies. See Appendix 1 for sample competencies and questions.
When checking references for some bargaining unit positions, for example, clerical, technical or outside worker positions, competencies will mostly be determined by the specific duties of the job.
Information that is not requested may be disclosed by the referee e.g. personal information such as illness or disability. If that information is seen as relevant to the demands of the job and, therefore, forms part of the decision making, it must be recorded and included in any documentation that provides the rationale for the hiring decision. The City would have to be prepared to defend the use of this information in the event of a grievance, human rights or privacy complaint. If staff need assistance they can consult with Human Rights and Employee and Labour Relations consultants.
Who should do the reference checking?
Reference checks are conducted by the hiring manager and/or human resources, or any party hired to run the selection process e.g. executive hiring consultants. The person responsible for performing reference checks must have sufficient expertise in reference checking and be aware of legal and other relevant issues before contacting referees.
The hiring manager and the human resources representative will formulate reference check questions.
(Where an external consultant is doing the reference check as a part of the hiring process they will comply with the City of Toronto policies).
What considerations must be taken into account when checking references in an internal competition for bargaining unit positions?
The extent to which a reference check may be conducted or the reference information may be used is based on the conditions stated in the applicable collective agreements.
The same principles and procedures apply in conducting and providing reference checks in any selection decision. The rules of MFIPPA apply in these cases as in the selection of management or external candidates; the employee must provide consent for referees to be contacted.
Requests for referees must be limited to current and former supervisors/managers i.e. management employees, when hiring for bargaining unit positions.
The competition process for bargaining unit positions is subject to grievance and you may be required to demonstrate the relevance of any information used in the selection decision either obtained from referees or from the personnel file. The information you gather must be current and relevant to the job. Consult with Employee and Labour Relations and check the appropriate collective agreement for guidelines on retention periods of disciplinary notations to determine what information can be legitimately disclosed.
Prior to using attendance as a consideration for declining a successful candidate labour relations should be consulted.
If the information you receive from a referee e.g. poor attendance, is of concern, you may wish to discuss this and any other concerns with the candidate to hear his/her explanation before making the hiring decision. If you decide not to hire this candidate, it is advisable to document the information you have obtained from all sources so that you can justify your decision if the employee files a grievance.