Authored By W.Barry Nixon, SHRM- CMP
In addition to conducting background checks, reference checking, or the process of contacting previous employers of a job applicant and individuals who have worked with him or her, are another way to determine if the potential hire’s capabilities, work history and personal fit will suit an open position.
But don’t confuse this process with employment verification or background checking. Also part of the hiring process, these procedures authenticate job and salary histories, and dates of employment, and ensure information supplied through resumes, applications and interviews is accurate.
All three governed by the rules of the FCRA, reference checking takes verification to the next level through interviews with individuals other than the applicant to learn about character, reputation, and mode of living.
Some employers have found that moving the reference check to the beginning of the application process helps identify applicants who are a poor fit before moving on to the next step, saving time and producing a better-quality pool of final applicants.
Although some companies fear being sued on discrimination or defamation charges, the reality is that this rarely happens and, when it does, very few are found liable. It is extremely difficult for the plaintiff to prove malice, which is rarely the case. It is, however, very important for employers to have guidelines in place to protect them from liability.
Qualified privilege, of which 38 states have passed laws, deems an employer lawfully able to make contact with references, unless 1. It is not for legitimate purposes; 2. It is communicated to a person without a need to know; 3. It is made with actual knowledge that is false or reckless; and 4. It is made for discriminatory reasons.
Many employers recognize, however, that giving out no information is the safest way to avoid legal liability. But, consider taking the following steps to encourage employers to provide valuable reference information:
* Have the applicant sign a Disclosure and Authorization form that authorizes the reference check. The potential employer should work with a labor lawyer familiar with state laws to develop the disclaimer’s language, which should be specific and clear by listing all information for which he wishes to obtain details.
* Involve the applicant in the process by having him or her contact the previous employer to let them know a release and request has been signed.
* Employers in states that have qualified privilege laws should attach a copy of the law to the signed release.
* Consider advising the previous employer of his obligations to provide information.
When performing reference checks, it is important to understand the growing threat of fake references. Companies like CareerExcuse.com and fakeresume.com offer to “fill any gap on your resume,” even going as far as creating phone numbers, websites and LinkedIn profiles. Employers can combat these unethical services by checking all references, asking to speak to others who may speak about the applicant, cross referencing information gathered with public information found on the Internet, and completing a simple Google search for the company.
Performing a thorough reference check takes extra effort on the part of the employer, but it is well worth the time to ensure no inconsistencies or misrepresentations have been missed.