The employment law attorneys at Bowie & Jensen explain what hiring managers can and cannot ask a job candidate’s references.
Until several years ago, employers could expect to get important information about job applicants’ skill, integrity, work habits, personality, and attendance by asking their prior employers for a reference. Employees, however, successfully cut off the source of valuable information by suing or threatening to sue prior employers for defamation, tortious interference with prospective business relations, and other torts.
Employers have reacted to that potential liability by giving “neutral” references that include only an employee’s dates of employment and last job title, even if the employee signs an authorization directing them to provide additional information. In some instances, even that limited information may show that applicants have lied about their work history. With that exception, however, checking references has generally become what amounts to a futile exercise insofar as an employer is seeking information needed to make a hiring decision.
Employers may get a read on what on what a prior employer might say by asking the applicant to sign the type of authorization described above. If the applicant balks, it can be concluded that negative information would probably be provided.
Employers may be able to obtain navigate around neutral reference policies by asking prior employers this simple question: would you rehire the applicant? That question can be safely answered and tells a prospective employer all that needs to be known.
Employers should still make reference inquiries and keep a record of having done so in order to protect themselves. For example, coworkers and third parties injured by an employee’s conduct may file lawsuits that allege that the employer was negligent in hiring or retaining an employee who should have been known to have a proclivity for engaging in conduct, such as sexual harassment or fraud. An employer can defend against that type of claim by demonstrating that it had tried to obtain information about the employee, but was unable to do so.
When requesting a reference, employers should refrain from asking questions that could result in liability to an applicant. For example, questions about the applicant’s marital status, national origin, and religion and history of filing workers’ compensation or discrimination claims should NEVER be asked. Even if that information is not provided, the fact that such questions were asked might be used to support a claim that the employer had an unlawful motive for taking an adverse employment action. For the same reason, employers should not make a record that this type of information was volunteered by a prior employer.
For more information about performing reference checks contact the employment law attorneys at Bowie & Jensen.