Blacklisting

Milly Christmann
Milly Christmann
Merriam Webster defines a blacklist as a list of persons who are disapproved of or are to be punished or boycotted. Does this sound sinister to you? Know the guardrails around blacklisting in the workplace or you could fall victim to it’s legal backlash. To learn more, read on.

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What Is Employee Blacklisting?

Blacklisting is the practice of actively preventing someone from getting a job. Blacklisting can result when a candidate for a job provides professional references from past employers. These employers share negative feedback about an employee’s past performance with a prospective new employer or recruiter with the intent to dissuade the hiring of the candidate. Blacklisting can also occur within an organization if managers or senior leaders are prevented from moving talent based on negative outside feedback. This feedback has little to do with any performance management process and creates the impression that the employee should be avoided and/or distrusted. Blacklisting can also occur when companies discuss talent and all agree not to hire someone based on the reference of someone in that circle of discussion.

Blacklisting Versus Whitelisting

Just as the names suggest, blacklisting is the opposite of whitelisting. During the recruiting process, most often, various filters can be set up to keep candidates out (blacklist) or segment them in (whitelist). A whitelist is a list of people who have been deemed desirable and trustworthy.  Both managers and recruiters can employ these practices. Both practices are highly biased.

Why Are People Blacklisted?

When recruiters or employers elect to practice blacklisting it is typically driven by emotion: anger, revenge, frustration and at times just ignorance. This emotion can be in response to any number of unfavorable issues with an employee. Here are some top reasons people get blacklisted:

  • Unreliable. Excessive tardiness, no-shows for shifts, excessive time off or schedule change requests. These can all be highly disruptive to a business.
  • Insubordination/bad behavior. Unhealthy arguments with teammates or managers. Emotional outbursts. Lying or other unethical practices.
  • Poor performance. Negligence on the job, unwilling or unable to learn a role acceptably. Being careless or being seen as not caring about the job, the team or the company.
  • Dishonesty. Lying on an employment application or resume. Lying about prior experience in order to get a position.
  • Bad chemistry. Exacting revenge by making certain that no one else hires the person with whom a boss had such a bad experience. Ever heard the old Hollywood phrase “you’ll never work in this town again”? That’s blacklisting.

Should Companies Blacklist People?

No. The legal risk is great and the ethics of this practice are highly questionable. Everyone has a right to work. There are extenuating circumstances that can wrongly color the events leading up to separation that may have not existed in a different work environment at a different time. Additionally, there are always two (sometimes more) sides to every story. The bottom line is that no company has the right to prevent a former employee from finding future work. Below, we’ll cover the reasons why companies should avoid blacklisting former employees.

Ethics

There is a moral code by which we all live in society. Everyone has a right to earn a living. Preventing someone from doing so is in violation of a code of ethics if not codes of law. Ultimately, there is always the employee’s side of the story that is important to understand and your company — or their previous company — may just simply not have been the right fit for that person.

Legal Compliance

Blacklisting is an illegal practice in most states and can be punished as a criminal or civil offense. Don’t do it.

EEOC

Employees that feel like they have been blacklisted can file a complaint with the Equal Employment Opportunity Commission (EEOC). Should this happen, you will be in the sometimes difficult and often costly position of fighting a claim.

Examples of Blacklisting

Blacklisting is a practice that can be overt or quite subtle. Knowing the actions that can result in blacklisting is a start to guarding against it.

ATS Coding

Recruiters can use their applicant tracking software (ATS) to red flag applicants so that they never even get into the consideration set for roles. Resumes subject to this never get past the recruiter’s desk. This can happen if an applicant is a no-show to an interview or is judged for having multiple mistakes on the application, poor grammar on a resume or any other thing that is off-putting to a recruiter. In this case, managers would likely never be aware that blacklisting is happening. Bear in mind that when a recruiter elects not to move forward with an applicant based on job qualifications that is not considered blacklisting even though it may also result in the hiring managers never seeing their resume.

Employment Verification/Reference Checking

When an HR professional receives an employment verification request, the standard rule is to provide confirmation that the candidate worked where they claimed they did in a particular role on particular dates. Salary should only be provided with written consent from the applicant. Blacklisting can occur when negative comments are made about their performance during the employment verification process. If you are asked to provide personal references, be sure you have gained alignment from each reference on how to best position your skill set based on their exposure to you. Never provide a prospective employer reference without a clear understanding of what will be said about your knowledge, skills and abilities by your reference.

Maintaining a List

Some companies have maintained an actual list of names — a blacklist — of people they never, ever want to hire. This is an illegal practice in nearly every state. HR professionals need to be mindful of any notes that end up in the personnel files of ex-employees that could be viewed as blacklisting. Sharing this type of list among employers can be viewed as fodder for a defamation lawsuit.

Legal Issues Around Blacklisting

Employers and recruiters never admit to blacklisting and for good reason. If found guilty, they potentially risk legal action around defamation, separation agreement violations and/or noncompete agreement violations. Legal action can be considered both criminal and civil in nature.

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Questions You’ve Asked Us About Blacklisting

Is it illegal to blacklist someone?
Yes. The challenge lies in how it is defined. Each of the 50 states have legal guidelines around what is considered appropriate when providing references. Check with your State Department of Labor office.
What are signs that someone has been blacklisted?
Having a hard time getting interviews, particularly in a strong job market can be a sign of being blacklisted. Check your own references by using a third party and confirm the information provided. Or, if you are in the final stages of the hiring process, expecting an offer and then suddenly being excluded without substantive reason can be a sign of blacklisting.
Milly Christmann
Milly Christmann

Milly Christmann is a high energy, operationally oriented talent management leader with extensive expertise in human resources, sales management, service and operations. She is recognized for collaborating with leaders to achieve their business goals by unleashing the power of an engaged workforce. By using process improvement, technology and strong, impassioned people skills as well as by attracting, developing and retaining top talent, Ms. Christmann drives change that matters.

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