Blacklisting: Why It’s Illegal & How To Avoid It | Eddy (2024)

Blacklisting

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 circ*mstances 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.

Blacklisting and DEIB

Not only can blacklisting be a result of a lack of diversity and insufficient DEIB practices within an organization, but blacklisting can also hinder your company’s ability to hire and retain diverse talent. Disgruntled past employers are often unable to see how their own implicit biases result in the termination or resignation of an employee.Let’s look more closely at how blacklisting can affect DEIB, and vice versa.

Insufficient DEIB Practices and Knowledge

A past employer may fail to establish a diverse and inclusive workplace culture, and that can have a negative impact on their workforce. A work environment lacking DEIB results in lower employee morale. That impacts production, performance, and chemistry between the employee and leadership. The very factors that would cause an employer to provide negative feedback could very well stem from that employer’s failure to create safety in their corporate culture.

Blacklisting, DEIB, and Recruitment

There is a growing need to recruit diverse talent in every facet of corporate America. In recent years, many companies have made it a point to invest in DEIB initiatives, encouraging recruitment and retention of diverse candidates. However, blacklisting can hinder a company’s diversity efforts from the outside, in.Since negative feedback can stem from insufficient DEIB practices, if that feedback is used to judge a candidate’s worthiness for a position, you may very well be sabotaging your DEIB efforts. Each candidate should be judged by their own skills and abilities, as measured by their resumes and interviews. This can prevent implicit biases from past employers seeping into your company culture.

Diverse Leadership

If negative feedback is used to shape promotion and recognition decisions within your company, you may be setting yourself back. Many companies are judged by how much of their executive leadership is diverse. An organization cannot pride itself on diversity if those at the top do not look like the communities they serve. Just as in recruitment, each employee should be judged on the merits of their achievements, work ethic, work product, and commitment to the mission and values of the organization.

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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