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May 2014 Newsletter – Beware the Undertow

January 1, 2019

Dear friends and colleagues,


A long-standing inside joke in my family stems from the parental admonition to “be careful of the undertow!”   While its origin stems from my mother’s well intentioned warning 40 years ago to avoid drifting too far from shore on those memorable family vacations, lest I be swept out to sea, it has evolved into an all encompassing sarcastic foretelling of any danger everywhere, even on dry land.  Driving on a snowy highway?  Watch out for the undertow!  Hiking in the desert?  Watch out for the undertow!


And so it is this reproach I extend to you next time you find yourself wading through the murky waters of the reference checking back-channels. The off-the-record, under-the-cone, between-you-and-me, double-shake-no-crossies-behind-the-back candidate reference underground is a dangerous place. People swim there all the time and this article doesn’t seek to stop it. Rather, it aims to demonstrate what can happen if you wade in too far.


And, no, it’s not the privacy implications of it all, though these matter. Nor is the thrust of this piece about the strict legalities surrounding reference checking; potential claims from candidates who allege clients were provided with misleading information about them; discrimination issues alleging a candidate was not put forward for a reason related to gender, age, race or any other protected ground; allegations that misleading information about candidates was provided or relevant information was omitted; data retention issues; or, referees who allege their confidences were betrayed or assessments of candidates were misrepresented.  All of these issues are important and real and really quite rare. But, these are not the dangerous cross currents of which I speak.


I’m talking about trust.   About taking a candidate at face value when they provide a list of people whose consent they have expressly obtained, with whom you (or we) can speak about them with their knowledge.  It’s about accepting the possibility that a referee can actually be objective, even critical, if asked the right questions.


The purpose of references is to validate and verify the integrity, job responsibilities, and accomplishments of a candidate. References also assess and confirm the candidate’s proficiency in the leadership characteristics sought by the client.  Issues such as work ethic, integrity, and values are addressed. In short, references help us validate our assessment of the candidate; add an additional layer of appraisal and an evaluation from a third party perspective; minimize the risk of failure and optimize the chances of successful integration; and identify future development needs.


Here’s the rub. Humans are cynical creatures so there’s an underlying suspicion about the veracity of the content provided by someone who willingly agreed to provide it on behalf of someone else. After all, who would agree to be a reference if they weren’t planning on saying nice things? The grains of salt with which ‘standard’ references are taken grow saltier still when a third party recruiter (gasp) is conducting the reference calls.  After all, those dastardly recruiters just want the close so they’ll round the sharp edges, make the good great and the ordinary outstanding, sayeth the cynic.


Again, I ask, is that the point of a reference check?  To find some dirt?  To figure out what the candidate isn’t telling you as though there must be something nefarious they’re hiding. A reference conversation handled well could actually unearth the dirt sought, and more. It could provide tools to manage the person once they’re on board, opportunities to address weaknesses and insights into what motivates them.   The burden is on the questioner to ask the right questions of the person they’ve been permitted to speak with; not to ask the wrong ones of someone they haven’t.


Here’s how it goes. An individual interviews for a job and like most in our bountiful marketplace, they are currently employed whilst doing so.  Therefore, discretion is paramount.  The interview goes well and an offer is prepared.  Precautions are taken throughout to ensure no leaks, no sightings, no breach of confidentiality (because, while the old adage – it’s better to interview for a job while you have a job – is true, interviewing for a job while you have a job is not without risk). The offer is conditional upon satisfactory references being conducted. The candidate notifies her referees that someone will be calling, provides the list of people for the prospective employer or their agent to call, the references are completed and thoroughly written up. They are typically, excellent.  The report is provided to the potential client. The recruiter, though trained in the art of conducting a comprehensive reference check, thorough and balanced, with specific inquiry made about issues of importance, probing around the small flags arising from the interview or confirming critical competencies exist, is undermined by that perceived conflict: the correlation between his desire to ‘close the deal’ and the glowingness of the reference given.   So the hiring manager, the Partner, the buyer, takes it upon himself to do a little extra digging, you know, off the record.   Who’s up for a dip?


Let’s park for a moment the obvious breach of confidentiality – people speaking with other people about another person who is gainfully employed and has no idea the conversation is happening. There is no opportunity to refute what may be said and no means to improve upon any criticism that flowed therefrom because the conversation “never happened” – and focus instead on the breach of trust.  Allow me to illustrate with a personal story.


Back in 2008, while gainfully employed and in a position of leadership within my law firm, I was approached to join a leading global search firm. The strange and twisted courtship of me and the myriad warning signs I ignored along the way (the shoe-maker’s son…) are a subject for another day.   As I discreetly went through months of meetings and interviews and dinners and wrestled privately, consulting only with my inner-most trusted circle of friends and family, I finally arrived at the decision to leave my current employ and join the search firm as a Partner. I provided references.  Six in total. Two from every previous employer for whom I’d worked, including my then current law firm’s then Managing Partner in whom I had confided early on. I was confident they would all have more good than bad to say about me, they were a credible and balanced group who would have offered a fair and objective assessment of me, if asked the proper questions.


So, my soon-to-be-Partners checked me out.  I passed. They offered. I accepted. A few days after accepting the offer but before telling anyone, including my then current employer (save for the couple of lawyers who provided references), I bumped into a Partner of the law firm I was about to leave who approached me and said, “so, I hear you accepted the offer.”   I didn’t know this Partner particularly well, nor he me.  So I asked, “yes, I did, but how do you know?”  “Oh, ” he replied matter-of-factly, “they called me months ago off the record to see what I thought of you and whether you were as advertised.” They did, did they? You don’t say.  If they spoke to this guy, who else did they talk to?  The trust was eroded before my first day at work and it was never truly regained.


Keep in mind, I got the job.  No harm no foul.  How about the more common scenario where the undertow pulls the candidate under and drowns their chances?  At best, he will have no idea what happened.   At worst, he’ll (wrongly) assume that one of the referees he consented to must have held him under. Either way, at no point will he know what was said, nor will he have the slightest opportunity to refute, contextualize or explain; let alone hold accountable the faceless shadows who sewered him.  And because the entire thing was, you know, under the cone and all, the recruiter is left to explain the sudden change of plans with little or no specifics. “The client has decided to go another direction” goes the refrain, which really means the candidate is floating face down and doesn’t even know it.


The complication here is that sometimes the back-channel gets it right.  To mix my metaphor, ducking under the ropes to catch a few turns of fresh powder is not without reward. There are certain things that even the most trained questioner cannot pull out of even the most obliging consenting reference. Every so often, that one piece of information, the one nugget that wouldn’t be shared on the record, yet is revealed off it, can spare the company or the firm the embarrassment of a truly bad hire. But that’s the exception, not the rule, and when you ski out-of-bounds and things go wrong, they go way wrong and fast.  There are a multitude of available data points from sources readily at your disposal, over and above the officially sanctioned reference list.  Frankly, a little time on Facebook, LinkedIn and Twitter can tell you more about a prospective hire than your buddy from university, who has an axe to grind because the candidate once dated an ex-girlfriend, likely can.


Point is, turns out mom was right.  You really do have to watch for that undertow.   And as we all hopefully remembered to say yesterday, mothers are always right.