You get a call from the HR department of a firm across town asking about Winston Whiner, one of the biggest complainers you ever had the misfortune to employ. Thankfully he’s gone and it seems someone else is checking him out.

Do you vent and tell this guy the straight goods about Winston? About the inch-thick disciplinary file he built up over the years? About the drinking problem?

Not if you want to stay on the right side of the federal Personal Information Protection and Electronic Documents Act (PIPEDA). Enacted in 2004, the legislation regulates the collection, use, and disclosure of personal information associated with a commercial activity.

It has also “essentially made the reference check as we’ve known it redundant,” says Roy Craigen of Transcom Fleet Services, an Alberta-based trucking consulting company. “Since PIPEDA we can’t talk about someone else’s pay, discipline — we can’t even really talk about their work performance any more.”

In fact, without the consent of the individual in question, you cannot disclose any “personal information” you may have gathered about the person during the course of his/her employment to any third party.

And “personal information” covers a lot of ground, though most of it would hopefully never find its way into a reference check: home addresses, phone numbers, age, sex, physical and psychological characteristics, race, present or past state of health, religion, political or other affiliations, criminal record, opinions, intentions, credit records, and financial means, according to Carole McAfee, a labor lawyer with WeirFoulds LLP.

However, it also includes information that a potential employer might like to know, including: education, disciplinary record, and attitudes.

Presumably the person requesting the reference was given your name by the individual in question. Does that imply consent?

Not really. “You should either ensure that the [ex-] employee is giving you this consent, perhaps built into the contract at the time that he or she is hired, or you should get their consent before you reveal any personal information to a third party,” says McAfee. “I would not rely on the fact that your name was put forward as a reference, as implied consent to reveal personal information; I think that the consent must be clearly understood.”

If you’re doing the hiring, be aware the driver’s reference
is going to be constrained by PIPEDA.

So it appears you’ve got two options: you can call up your former employee and get his/her consent to disclose their personal information; or you can stick to what you can disclose — a confirmation that the employee did indeed work for you between such-and-such a date in such-and-such a role.

If you’re the one doing the calling, of course you have to recognize that the reference is going to be constrained by PIPEDA. However, according to Craigen, the reference checker does have one big ace in the hole.

“Really, the key single question that is still valid, and carries a lot more weight than it used to, is: ‘would you rehire this individual?’ That is a simple yes or no, and if someone says “no”, that, today, is a very solid red flag. You’re not giving out any personal information with that. And you do not have to justify it,” he explains.

Craigen says you should do a little research on the company, and its HR staff, before you make any snap decisions. How long has this HR person been in that job? Have they been successful in the job in terms of references they’ve provided or people they’ve brought into their own organizations?

“If you can chat them up a bit, and explore through conversation who you’re dealing with, you can usually get a sense of their level of professionalism,” he says. “Are they frank? Do they know their stuff? Is there hesitation? Are they skirting some of your questions? Are they not answering with a valid answer? Can they not substantiate some of what you’re asking? Ask yourself a few questions and it should help decipher whether or not they’re feeding you a line.”

Ideally, says Craigen, you should have a strategic plan that emphasizes building trust relationships with other firms in the trucking business — building a network of confidantes with whom you can share information, including about drivers.

Can you find those firms? “It’s a real mixed bag out there,” he says. “There’s a lot of protectionism in trucking. But there’s also a lot of companies out there with nothing to hide who realize that you can only get better by helping each other to get better. That just makes a better trucking industry.”

As for potential cross-border hires, prospective employers are required to collect and document the collection of three years of basic personal, employment, and DMV history, as well as records of the driver’s drug and alcohol testing history — positive or negative. And, the prospective employer must take all precautions reasonably necessary to protect the records from disclosure to any person not directly involved in deciding whether to hire the driver.

According to labor lawyer McAfee, you’ll need the driver’s consent to dig deeper into the past than PIPEDA allows. If the driver doesn’t give the green light, you probably don’t want him taking your loads away from the dock.