By Barry Hartstein and Corinn Jackson, Littler Mendelson, P.C.
Employers today are faced with a hiring conundrum. Employers desire as much information as possible about a candidate in order to make a well-informed hiring decision. Those very same employers, however, are frequently wary about releasing information about a former employee to a prospective employer based on concerns of potential claims from the former employee, including defamation, discrimination, or retaliation from that former employee. In the search for talent, employers are engaging in increased due diligence, including background checks regarding a candidate’s education and work history, as well as other screening devices, such as drug testing and inquiries regarding an applicant’s criminal history and reference checks. The hiring process has become a legal maze and, at each step of the process, employers must take care to comply with continually changing legal requirements. Just as challenging are the issues faced by employers when dealing with former employees. Former employees frequently desire references to set them apart from large pools of applicants as they seek new employment. However, employees who lose jobs due to performance problems or misconduct may raise concerns about negative information being shared with prospective employers.
This wide array of hiring-related issues demonstrates that employers must be careful in every step of the hiring process. The objective of this introductory report, and future reports that will provide greater detail on the issues discussed below, is to provide an overview of some of the legal issues that arise in the hiring process, particularly dealing with reference checks.