According to the Globe & Mail, employers and recruiters are assembling a “blacklist” of people considered unfit for hiring.  Apparently, if you are a liar, a loser, or a misfit then the chances are good that your name will end up on such a list.

Joann Lublin, in her article, “Blacklisted: One mistake can land you on a do-not-hire list” addresses the “unofficial” practice of listing “undesirable applicants”.  Unbeknownst to the individual, his or her job prospects are curtailed by the fact of having been labeled as an undesirable.

It seems that the practice of accumulating a list of “do-not-hires” is fairly widespread.  One recruiter, mentioned in Lublin’s article, claimed that every headhunter and employer he surveyed on the topic admitted to keeping a so-called blacklist.

The fact that recruiting firms (a.k.a. headhunters) and human resources departments keep such lists is perhaps not surprising.  To some extent, after all, their job is to weed out undesirables or, as Lublin calls them, “liars, losers and misfits”.

Once an employer or a recruiter has identified an individual as unattractive for some reason or another, it makes some organizational sense to make note of that name.  This prevents the inadvertent hiring of that same individual at some point in the future.

But if there’s one thing we, as a society, seem obsessed about right now it’s the existence of secret lists containing our information.  And, no doubt, many people will be disturbed by the revelation that hiring blacklists are out there and will never, ever be offered for public viewing.

The existence of such lists will surely be a cause for concern for some people.  According to Lublin’s article, it doesn’t take a whole lot to get on the list.

Is there anything, legally-speaking, a person can do in response to such blacklisting?  The first hurdle, of course, is simply uncovering that you’ve “made” a list.

Assuming there is some evidence that someone has blacklisted you there are, in theory at least, some legal avenues for redress.

The first thing that jumps to mind is the range of so-called “privacy” or personal information statutes.  Those, such as B.C.’s Personal Information Protection Act, provide individuals with legal mechanisms to gain access to their personal information being held by an organization.

But does someone else’s opinion of your fitness for hiring qualify as your personal information?  My own sense is that it does not, but that shouldn’t stop you from trying to make use of the statutory disclosure mechanisms to find out what is being said about you.

Another legal avenue is the civil law of libel and slander.  If information about you which you consider defamatory has been published in some manner – say, from recruiting agency to employer – there is the potential of obtaining damages.  An even more effective remedy might be an injunction preventing further distribution of the information.

However, truth is a full defence to an allegation of defamation.  So, I suppose actual liars, losers and misfits need not bother suing (“Your honour, I submit for the consideration of this esteemed Court that Mr. Jones has, in fact, demonstrated himself to be a misfit!).

If the reasons for blacklisting relate to protected grounds set out in human rights legislation – B.C.’s Human Rights Code, for instance – then there may be a discrimination complaint waiting to be filed.  If, for instance, the reason for your name appearing on a do-not-hire list arises out of a physical or mental disability, then a human rights complaint would be the route to follow.

Realistically, the best approach may be to avoid getting on a blacklist at all.  A reading of Lublin’s article indicates that shouldn’t be all that difficult of a task for most people.

Some of the common mistakes made by applicants seem to include exaggerating their experience and qualifications, exhibiting poor presentation skills, having the temerity to make a counter-offer to an employer, playing one headhunter off against another, and reacting flippantly to interview questions about serious subjects such as drug abuse.

These are pitfalls that any career consultant can help the average applicant avoid.  It’s better, I’d say, to take such preventative measures than to end up on someone’s secret list of liars, losers and misfits.

Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law.  For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com  This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.

Related to Blacklisting Liars, Losers and Misfits:

• Exaggerating Qualifications
• The services of a career coach
• Skills Inventory

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Employer complaint letters may not be the best strategy.

It’s the last resort for the frustrated employee who is burned out and fed up with his boss — the final step before walking out the door and finding a job elsewhere. It’s the employer complaint letter, directed to higher authorities within the organization. It lays out a range of grievances about a manager and it’s not without risk.

But let’s say we ignore the (substantial) political risk and setbacks inherent in opening up about your manager’s many and varied shortcomings. There’s still a legal risk. As a result, employees should think twice (or, perhaps, thrice) before firing off such a missive.

Typical employer complaint letters
It seems these letters generally contain three categories of complaints: my boss treats staff poorly, she doesn’t know what she is doing, and he makes it impossible for me to do my job. These are, to be sure, serious allegations and the author of the letter should be expecting an unreceptive audience. (Zolpidem)

An employer complaint letter in the courts
The BC Supreme Court recently addressed the case of Marianne Van Der Meij, who penned a letter of complaint about her boss. Van Der Meij was a coordinator of the settlement department at the Victoria Immigrant and Refugee Centre Society.

She was responsible for supervising and evaluating the work of four staff, preparing funding proposals, attending conferences, organizing workshops, and handling a client caseload. According to the Court’s description, I think it would be fair to call the Society’s operation a stressful work environment. Typical of such organizations, it appears there were an overload of work and a shortfall of funding.

Ms. Van Der Meij had an issue regarding the performance and conduct of one of her staff, and that led her to have a confrontation with her own boss, the Society’s Executive Director. Until this event, her relationship with the Executive Director had, by all accounts, been respectful. The Executive Director considered Van Der Meij to be effective at her job and he had never had a reason to impose discipline.

As a result of the confrontation, however, Van Der Meij delivered a letter to the Society’s Board of Directors. Among other things, the letter stated, “I feel that I have been compromised in every regard and cannot function in the current climate.”

She went on to say, “My workload is far beyond anything anyone can handle, my position as coordinator has been compromised by Carlos’ unilateral actions that he has kept secret from me, I can no longer take responsibility for the work of others in the program since my hands have been tied in dealing with it, Carlos has become irate with me, his stated intention to violate a client’s right to confidentiality, this in turn compromising the confidence I had built with the client, and moreover he has shown a cold and uncaring disregard for my health.”

The Society took the position that, by sending this letter to its Board of Directors, Van Der Meij had either resigned or had provided sufficient just cause grounds for summary dismissal.

The Court began by accepting, as a general proposition, that an employee is entitled to criticize her superiors without fear of immediate dismissal. In some circumstances, however, criticism can undermine the employment relationship and render it impossible for the employee and his manager to continue working together.

Tone matters in employer complaint letters
The manner in which the employee voices her criticism of the manager is also relevant. If the criticism is disrespectful in tone or language or is otherwise irreconcilable with continued employment then the act of complaining may give rise to cause for immediate dismissal.

The Court felt so strongly about this aspect that it emphasized just cause for immediate dismissal may exist regardless of whether the complaints are justified. That premise is a little difficult to accept but it is perhaps an indicator of how seriously the Court views intemperate outbursts.

The Court concluded that the language and tone of Van Der Meij’s complaints were disrespectful, pejorative, and unnecessarily inflammatory. She described her manager as acting, or taking no action, out of fear or weakness. She allowed her emotions to creep into the language used. She was unreservedly critical of the Executive Director’s handling of workplace issues. She also pointed to serious flaws in his character and ability to manage.

Van Der Meij’s letter to the Society’s board of directors was found to be inaccurate, exaggerated, disrespectful and inflammatory in tone and language. It was sent to the Society’s board of directors without giving the Executive Director an opportunity to deal with the problems it addressed. Both the content of the letter and the manner in which Van Der Meij brought her complaints to the attention of the board constituted a fundamental breach of the trust relationship between her and the Executive Director.

Court ruled the letter ended employment
These actions effectively ended the employment relationship because the Executive Director could no longer work with someone who had no respect for his management abilities, his character, and his ethical standards. As a result, the Court found that just cause for summary dismissal existed.

Ms. Van Der Meij found out, the hard way, that going over the head of one’s boss can be a perilous strategy. Her case serves as a good example of why a person in her position might be better served by looking, quietly, for other employment.

area of labour and employment law. Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in theFor more information about his practice, visit www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.

Related to employer complaints
•    Quitting your job – how to leave on a high note
•    Getting fired — 10 ways to tell it’s time for find another job
•    Using emotional intelligence in your job search
•    Second thoughts after changing jobs

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