Siyapambili

Minimising the risks of reference checks (Brie Hobbs)

As more job seekers continue to look for employment in today’s job market, businesses will continue to field reference check calls from other employers.

Today, responding to reference checks has become a tricky business. It’s important to minimise legal risks, like lawsuits that claim defamation of character, discrimination, infringement of privacy, or claims of negligent reference checks. Here are some basic steps you should keep in mind when providing reference information about a former employee.

 

Establish a Policy

The first step to minimising the risks is to develop a company policy. Second, is to ensure supervisors, managers and all employees adhere to it. Many companies have restricted reference policies in place to limit liability and provide guidelines for responding to reference requests. Policies often require supervisors to notify the human resources department of requests. HR experts recommend you designate a trained HR representative to handle all employee reference checks.

 

Proceed with Caution

Before responding to a reference check, review the company policy. If the reference request is made over the phone, take down the contact information of the individual requesting employment verification and return the call after you’ve reviewed the policy and contacted your HR department.

Company reference policies should require written consent from an employee allowing you to share certain employment information. Taking time to respond to a reference request will also allow you to ensure you have a signed consent form on file first. If an employee left on bad terms, it’s also important to seek legal advice before responding, to prevent negligent reference claims.

 

Stick to the Facts

The reference information you provide should be factual and relevant to the individual’s employment history with your company. Do not volunteer information and avoid sharing personal commentary or opinions. Don’t disclose sensitive information including information about race, religion, age, disabilities, sexual orientation or marital status. Stick to verifying basic facts like date of employment, salary, and title.

 

Make a Record of the Conversation

Be sure to make note of any reference information you provide to potential employers about a former employee and keep it on file. Document any pertinent information like the former employee’s name, the name and contact information of the individual requesting the reference, and a summary of the information you disclosed.

While it may be tempting to simply not provide information about a past employee, it’s important to remember that you can still be liable for negligent claims. To best protect your company from legal issues, minimise the risks by establishing a reference check policy supervisors and managers can follow.

Turnabout on labour broking

Turnabout on labour broking

2010/03/29 08:32:00 AM

Dewald van Rensburg & Philip de Bruin

Johannesburg - Cosatu is, after all, prepared to accept labour broking if new regulations for the sector are made "watertight".

Cosatu won't indiscriminately shoot down alternative plans, declared Zwelinzima Vavi, general secretary of the union, on Friday.

Upon invitation he addressed the labour brokers' employer organisation Capes without once harping on the union's demand for a total ban on labour broking.

Cosatu would fight to get the best possible legislation through parliament and then use this legislation to the full, he said.

Earlier this month Cosatu promised to call out a countrywide strike in 2010 to demand the prohibition of labour broking - with a second possible strike to protest Eskom's tariff hikes.

In recent months, though, a labour-broking ban has seemed increasingly unlikely.

Namibia's ground-breaking ban on broking, which Cosatu had wanted to emulate, came to nought in December following a judgment in the appeal court of South Africa's neighbour.

The landmark decision declared the ban unconstitutional for reasons that would probably also obtain in South African courts.

Despite regular hot-headed pronouncements against labour brokers, Labour Minister Membathisi Mdladlana also preferred to propose regulations in official policy documents.

The ANC has never officially expressed support for a ban. On the contrary, in his State of the Nation speech this year President Jacob Zuma promised a R1 bn fund to establish loan subsidies.

Cosatu slammed the planned subsidy as a "threat" to create a third, even more subservient, category of workers in practice.

In his speech Vavi blamed labour brokers for workers' declining participation in national earnings. Ever since the end of apartheid wages, as part of overall national earnings, have fallen from more than 56% to about 47%.

Research by the Labour Research Service in Cape Town shows that real wages in South Africa have declined 17% since 2005.

Apart from "massive" unemployment, the country is also suffering from an increasing number of poor workers - which is attributable to the circumvention of labour laws, said Vavi.

In Cosatu's view labour broking is one of the main drivers of this process. It creates contractual relationships with little security and weak wage and service conditions.

According to Vavi, statistics on labour broking clearly indicate the industry flourished only after the Labour Relations Act was ratified in 1995.

It was difficult, he said, to ignore this obvious catalyst, with employers seeking alternative contractual arrangements to circumvent the new legislation.

Laws written on paper are all well and good, but in reality we are far from applying all the laws and from changing workers' lives, Vavi continued.

Cosatu accepts that employers frequently need to appoint temporary staff for valid reasons.

Vavi pointed out that the sector was regulated as a "temporary employment sector", while contract workers often worked permanently for their employer's clients.

Labour Court ruling

Meanwhile, Philip de Bruin reports that the Labour Court has prohibited one of the most important standard provisions contained in contracts that labour brokers enter into with workers.

This provision states that a labour broker can remove any worker supplied to an employer from that employer's premises should the employer request it.

Faan Coetzee, a director and labour expert at the firm of Cliffe Dekker Hofmeyr in Sandton, says this Labour Court decision will have "far-reaching consequences".

The Labour Court found that this clause in a contract - especially if it results in the worker losing his job with the broker - is contrary to public policy and amounts to unfair violation of the worker's right to fair labour practice in terms of the Labour Relations Act.

In the case before the court the employer concerned asked the labour broker, INTCS Corporate Solutions, to remove the worker, Simon Nape, from its premises.

INTCS subjected Nape to a disciplinary hearing, gave him a final written warning and sent him back to the employer. But the employer refused to take him back. As INTCS had no other work for Nape, he was dismissed.

The Labour Court found that Nape's dismissal had been substantially unfair.

- Sake24.com

Labour Brokers - Phase Two Starts

It was Churchill who said of victory in the Battle of Britain, that "it was not the beginning of the end, but rather the end of the beginning".  We might say the same about the labour broker debate, which has now shifted a gear, and hopefully will become a rational and informed, rather than an emotive and rhetorical debate.

This phase shift was achieved over the weekend of November 7/8, when the National Executive Committee announced that Government had concluded that labour broking should not be banned, but should be regulated. This, we have argued strenuously since the topic first arose, is the only possible way forward.  A total ban, treats the reputable majority as being indistinguishable from the small outlaw minority, and recognises that the cost to the economy and to the social fabric would be on the scale of a national disaster, and would, ironically, drive those who operate outside of the law even further underground.  

Organisations such as CAPES and APSO, representing the industry have long advocated regulation, so the Government announcement is to be welcomed.  It also shows that when a balanced view is taken, Government does not subscribe to the populist rhetoric of COSATU, which damns every labour broker as a slave trader, a human trafficker, and lower than a drug dealer.  Perhaps now we can continue with a more rational discussion, and see what kind of regulation we can expect.

I think that the starting point of the discussion is the Constitutional Bill of Rights, and specifically the labour rights found in s23.  The Constitution is the supreme law in South Africa, and the Courts must apply it, strike down legislation that offends against it, and develop the common law in the light that the Constitution shines upon it.  It is an exceptional document, and every citizen should understand it, and feel protected and comforted by it.  The point that I wish to stress, is that it is to everyone’s’ advantage that the Constitution is upheld.  Unconstitutional behaviour should not be tolerated for one minute.  It threatens us all.

Unscrupulous labour brokers have denied people at work their constitutional right to fair labour practice.  It is not the only mechanism that has been used, and is one that when in the hands of reputable and responsible TES’s, need not have that effect at all.  However, the broad brush of abuse has painted every operator in the Employment Services sector in the same way – as ruthless exploiters.  This is patently not so, since it has been the Temporary Employment Services Community, and not the ‘Bakkie Brigade’ who have advocated this step.

The starting point is going to the right to fair labour practice, and the most frequently found aspect of this is in the right to be fairly dismissed.  By far the greater part of the CCMA’s work for example, over 80% relate to claims of unfair dismissal, so this is where the greatest impact will be felt.  The TES itself, as the employer is primarily responsible as the employer for fair dismissal, but it is certain that a joint responsibility for this will now be reflected on the user of TES labour, making the responsibility for a fair dismissal joint and several.   This means that reputable TES’s will (and Express Employment Services already has) put a disciplinary procedure in place to ensure fairness.  Consequently, before engaging the services of a TES, the end user will seek reassurances that there are proper procedures in place, with the net result that fairness is ensured.  Being able to reassure a client that TES employees are treated fairly, and not dismissed improperly  should this prove to be necessary, in a manner which does not leave the client vulnerable, becomes a competitive advantage for the ethical TES.

The issue of pay for TES supplied labour will become an important issue.  The unions have argued that a labour broker makes its profit by paying the employee wages that are below the minimum specified, and thus make their profit by robbing the worker of their just reward.  We showed in our previous article that this was not so.  However, recent legislation, in Britain, for example, has focussed on discriminatory differentials.  However, the area is fraught with difficulty, and it is to be hope that our courts will take the time to understand the mathematical complexities involved in analysing a wage payment structure to identify whether or not observed pay differentials are really unfairly discriminatory in nature, or in fact reflect differences such as performance, productivity, length of service, skill, and other genuine and legitimate differentiators.

Finally it needs to be clearly understood that any intervention in the labour market of this size and scope will not be without significant consequences, which will undoubtedly be loss of jobs, and the disappearance of those who are content to operate outside of the law, even further underground.  

There are 550,000 employees in employment everyday – to believe that every one of these will simply become a permanent full time employee, is naïve. What Government repeatedly refuses to understand, is that you cannot compel employers to create jobs, or to hire staff, and the more they perceive the employment environment as being oppressive and stacked against them, the less willing they will be to employ.

The need for labour flexibility is beyond debate.  So too, is the fact that no reputable or decent employer would argue in favour of labour exploitation.  Now that we hopefully have reached the point in the debate where the rhetoric and abuse has stopped, it is to be hoped that logical debate and discussion can begin, so that the optimal solution can be found. In the interim, the reputable labour broker still serves an important function in the labour market, and manages to do this within the spirit of labour legislation.  This is the time for cool heads and balanced decision making to come to the fore.  Any ‘solution’ which adds hundreds of thousands of South African’s to the numbers of the unemployed, is no solution at all.

 

Author: Andrew Levy of Andrew Levy Employment

Labour broking industry overhaul promised

AMY MUSGRAVE	Published: 2009/08/13 06:16:58 AM

A MEMORANDUM of understanding to promote “decent work” in the labour-broking industry has been signed by the Federation of Unions of SA (Fedusa) and the Confederation of Associations in the Private Employment Sector (Capes).

The organisations have also called for the effective registration and monitoring of temporary employment agencies and the proper enforcement of existing laws for the industry.

Labour brokers have come under the spotlight in recent months with most trade unions calling for their banning, saying that they exploit workers by paying them “poverty wages” and deny them benefits that are provided for by law.

Though Labour Minister Membathisi Mdladlana was initially in support of the banning, he recently proposed that the National Economic Development and Labour Council (Nedlac) give him the right to ban brokers in specific sectors only.

“Our labour laws need to be re- evaluated to ascertain the extent to which they provide employees with decent work, in line with the national strategic objectives,” Mdladlana said earlier this month.

Capes, which brings together five member associations, is opposed to the banning of all labour brokers, saying that it could have dire repercussions for 500000 “assignees” placed daily by temporary employment services.

Fedusa and Capes, which signed the memorandum at Nedlac yesterday, said they supported the establishment of the revised regulatory framework, and decent work — as defined by the International Labour Organisation — in the sector.

“The signing of the (memorandum) with C apes is the beginning of a new era for the temporary employment industry in SA as it provides a platform for social dialogue to take place. It is therefore clear that this industry must be effectively regulated,” Fedusa general secretary Dennis George said.

Capes chief operating officer John Botha said he supported the co-regulation of the industry by Nedlac’s partners to stop illegal and unethical practices.

“This is in light of the poor enforcement of many aspects of existing legislation to date.”

Botha said he did not understand why it had taken the Department of Labour so long to table revised proposals at Nedlac to address the matter of regulation properly.

musgravea@bdfm.co.za

Blitz on labour brokers put to cabinet this year

Labour Minister Membathisi Mdladlana told MPs that he intends to amend the labour laws to tighten up on labour broking.

Introducing the debate on his budget, the minister ran out of time before he could give details, but in a circulated version of his speech he promised to go to cabinet before the end of this year with amendments to the Labour Relations Act to deal with the problems he said temporary employment agencies caused to workers.

Some brokers, he said, go further than South Africa’s labour laws require.

"Others fragrantly (sic) undermine health and safety regulations and minimum requirements in terms and conditions of employment," he said.

"These are issues we have to deal with in a way that extends protection to temporary workers and ensure that they have the same rights as others in their work situations."

Mdladlana added that amendments to other labour laws may be necessary.

"The implementation of the Employment Equity Act could be improved through further amendments as suggested by the commission for employment equity," he said. He said that his department will soon be publishing revised regulations dealing with employment equity plan and report.

He said the constitution spoke of the regulation between employer and employee. But with labour brokers the client is the one who fires the workers, and not the broker - but the broker is the employer.

"If we are going to define the employer, we must amend a lot of labour laws," the minister said in answering the debate.