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Checking employee references is a critical step in the screening process. However, due to increased discrimination litigation, defamation, invasion of privacy and emotional distress lawsuits in recent years, reference checking has become a sticky issue. Past employers often feel reluctant to reveal information about an employee for fear of being sued. In fact, many companies have adopted a "no comment" policy that prohibits people from giving out any information except for confirming dates of employment.
On the other hand, employers faced with screening applicants can be held liable for hiring an employee who commits an act of misconduct leading to others' harm or injury. In such situations, courts have charged employers with negligent hiring-failure to properly interview or investigate applicants' backgrounds. But applicants still have a right to privacy. Finding the proper balance is your responsibility-whether you are the employer charged with checking references, or the past employer asked to provide a reference. Below are ten tips to guide employers in the reference checking process.
Consent & Confidentiality. Get applicants to sign a form which verifies that they have been informed that a reference and/or background check will be conducted. Even better, get applicants to sign consent forms which give former employers permission to release employment-related information. Sometimes, understandably, a candidate will ask that you not contact the current employer. Of course, if a candidate declines to authorize any reference checks at all, or if the candidate won't allow you to call the current employer even though you are ready to make an offer, you should beware.
Let the former employer know that you have the employee's consent to obtain job-related information. Stress confidentiality to the former employer. State that you need this information in order to make a fair hiring decision -to protect both of you.
Also, require a leaving employee to give you written permission to respond to a reference check (include this in your standard Release agreement, signed at the end of employment).
# of References to Check. Check several of the applicant's references, both those offered directly by the candidate and those developed from an interview or listed on an application as supervisors. Regardless of the number of references you decide to check, make sure you are consistent across candidates. Don't, for instance, get caught checking out three references for some candidates and only one for others-if any of the candidates are in a protected group (i.e. race or national origin, gender, age, etc.) your reference-checking system might not be considered a level legal playing field for all potential employees.
Which references to check. Past supervisors and co-workers are usually the best sources for objective job-related information about the candidate. If you can, contact an immediate supervisor or someone who worked directly with the candidate at the last job.
Documentation. Make a checklist of questions you plan to ask to ensure consistency among candidates. Carefully document all calls you make and the responses you receive.
If you are the company being asked to provide a reference, ask that reference check requests be made in writing and, in turn, respond in writing.
Standard questions to ask. Some questions and responses are fairly safe. For example, verify the position title, date and term of employment, whether the position was full-time or part-time, and the salary range. You should also ask about the employee's job description and duties.
Job-related questions to ask. In addition to the basic questions, you should develop questions related to the specific requirements of the position you are filling. For example, your position may include such requirements as: supervisory ability, interpersonal skills, self-direction, flexibility, etc. You may also want to ask questions related to specific job skills, general approach to the job, attitude or conscientiousness, ability to work with others and attendance. If a reference is unwilling to answer these specific questions, try asking for a performance rating. However, make sure an explanation is included with the rating. You might also try volunteering information the employee told you, and then let them comment on, or correct the information.
Reading between the lines. Listen carefully to the answers you are given. Try to pick up clues about what is not being said. If the person sidesteps a question twice, a red flag should pop up in your mind.
When all else fails. If a former employer is reluctant to answer specific questions, try asking, "Would you be willing to rehire this person?" A "no" answer to that question may silently speak volumes about that applicant.
Giving references. You need to be careful about saying negative things that may border on defamation. Even not giving a reference, when doing so for other employees, can be considered defamation, according to court decisions.
Keep to job-related comments. Try to ensure that only authorized and trained people, knowledgeable of the applicant's job-related information, give the reference (of course, a former employee might still have a friendly colleague provide a good reference).
Be aware that while a previous employer should only provide factual, job-related information, there are times when an employer may have a "duty to warn." Employers can be held liable for withholding information that might cause harm to a third party.
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