How Employers Should Deal with Reference Checks by Lester S. Rosen

A reference check of past employment means obtaining qualitative information about the performance of job applicants such as how well they did or where improvements are needed or if they would be rehired. Employers who are concerned about obtaining references will undoubtedly find themselves in the position of being asked for references.

How to Handle Incoming Calls

So what are the best ways to handle incoming calls for reference checks? Here are some guidelines to consider when responding to requests for reference information:

• A firm should have a written policy and procedure for giving references.

• All information should go through a central source. This gives a firm consistency and reduces the chances that a manager may give out information that is contrary to company policy. As a practical matter, many organizations understand that even though there may be such a policy, there is, in reality, a practice of individual managers giving information. When that is the case, an alternative policy is to allow managers to do so under a strict program with procedures, training, and consequences for failing to follow procedures.

• Clearly document who is requesting the information, for what purpose, and exactly what is provided. Former employees have been known to have friends or paid reference checkers contact previous employers.

• Clearly document who in the company is giving the information because this can be important in order to trace who-exactly-said-what in a reference check. Keep in mind that staff members may leave a company and, without a written record, an employer may not be able to defend their reference actions.

• If the information requested goes beyond dates and job title, a company may ask for a copy of a written release. This also provides some protection against defamation lawsuits.

• If an ex-employee has a pending claim against the employer such as a workers compensation claim or has filed a discrimination charge or lawsuit against the company, then the past employer needs to be very careful about what information is given. No information should be given beyond job dates and job title without contacting your legal department. That is because an employer needs to be very concerned about allegations of retaliation against an ex-employee for filing a claim.

Reporting Negative Information on a Former Employee

If the employer intends to give negative information, the following may be helpful:

• Remember that employees most often seek the advice of an attorney when they are surprised, or feel that they have been fundamentally disrespected or demeaned as a human being. Imagine an applicant’s surprise when he or she hears for the first time from some new potential employer they are getting a negative reference from a past employer. If negative references may be an issue, what the past employer that intends to say should be handled and documented at the time the employee leaves during the exit interview so there are no surprises.

• Disclose only factual information. Make sure everything has been documented. For example, if the former employee was convicted of a crime, a past employer can simply report the public record. A past employer’s performance evaluations can be a good source of information. The employee has already seen the performance evaluations and in most cases signed them.

• Avoid conclusions and give facts instead. For example, avoid saying a former employee had a bad attitude. Instead, convey facts showing a failure to get along with team members. Let the facts speak for themselves.

• Include favorable facts about the employee. That demonstrates an employer is even-handed.

• Make sure the personnel file is factually correct. That is something HR may do when an employee leaves.

In the event the former employee has a pending claim against the company for any reason (e.g. workers compensation or a lawsuit), an employer should strictly limit any comment to only the basic data such as start date, end date, and job title.

About the Author

Attorney at Law Lester S. Rosen is Founder and CEO of Employment Screening Resources® (ESR) – www.ESRcheck.com – a nationwide accredited background screening company located in Novato, California. He is the author of “The Safe Hiring Manual,” the first comprehensive guide to background checks, and “The Safe Hiring Audit.”  A recognized background check expert, his speaking appearances have included numerous national and regional conferences, as well as international conferences.  See: www.esrcheck.com/Stay-Updated/ESR-Speaks/. He has been quoted in websites, newspapers, and trade journals across the United States and the world.

Mr. Rosen was the chairperson of the steering committee that founded the NAPBS, the professional trade organization for the background screening industry, and also served as the first co-chairman. He has served as an expert witness and has testified on issues surrounding employment screening, safe hiring, due diligence.

For more information or to order The Safe Hiring Manual 3rd Edition, visit the BRB Publication Bookstore.

About BRB Publications

BRB Publications, Inc. is the premier publisher of references and websites used for locating public records. BRB’s books and electronic products point the way to over 28,000 government agencies and 3,500 public record vendors who maintain, search or retrieve public records. The metadata provided by BRB includes in-depth descriptions of record access policies and procedures, access methods, restrictions, fees, turn around times, identifiers shown on records, and other needed tips and info used for public record searching. All products are up-to-date, comprehensive, and affordable.