Joe Smith applies for an open position in the county Public Works Department. His application shows a number of positions with an apparent seamless history. Since there is no obvious gap in employment, and after a fairly pleasant interview, the Director of Personnel for the Public Works Department wonders if there is any reason to follow up and check on the data from Smith’s application. The answer is a resounding Yes!
An unfortunate statistic from a recent study shows that nearly 36% of people have embellished or distorted information in their resumes. Making thorough reference checks becomes ever more important. As large employers, counties are wise to have procedures in place to ensure that applications are reviewed carefully and references checked in a consistent manner.
An employer should advise an applicant that the information provided in an application will be subject to verification. An offer of employment may be contingent upon confirmation of the accuracy of the application content. A simple statement in the application that the information supplied will be checked and that any inaccuracies found may be used to disqualify the applicant should suffice. The employer then must follow through on actually verifying the data provided.
If a particular position requires a specific license, the application should ask for that information. A verification of the validity of such license should also be obtained. A written authorization from the applicant that this type of information may be verified is suggested.
Many employers have also moved towards obtaining an authorization from the applicant to contact references provided and verify information in the application without liability on either the prospective employer for looking into the data and to others who provide information requested. In essence, requesting a release of liability for all parties contacted in regard to the information they provide would be one way to ensure that the third parties actually give information when requested.
Specific rules for an employer to follow in verifying information on an application should include contacting all previous employers and verifying (1) dates of employment, (2) position held and (3) the job duties associated with the position. The prospective employer should try then to gain additional information regarding the applicant, if the former employer will elaborate. While many former employers are reluctant to provide too much information, the release that may have been obtained earlier would be particularly helpful in allowing the prospective employer to learn as much as possible.
The employer should contact all references listed on the employment application. References should be asked how long they have known the applicant, what was the extent of the relationship or in what capacity did they know the applicant, and whether the reference is based on first-hand experience with the applicant. Perhaps getting additional information from the reference about the person’s work history would prove helpful in verifying that which was learned from the former employer directly.
A specific procedure for contacting former employees in regard to references is suggested. Utilizing a written form on county letterhead can often provide comfort to those being asked to provide the reference. This form appears to be a more official request, and creates consistency in the requested information. Telephone references are appropriate as well so long as there is documentation of the contact. The same written form could simply be completed when making a telephone reference check.
Some employers are comfortable commenting regarding eligibility for rehire. An individual may be eligible for rehire, even if rehiring by that employer would not occur. At least asking about eligibility for rehire would allow you to understand as an employer that there was not some grave problem which resulted in the employee’s separation from the former employer. Some employers may not provide an actual comment about potential for rehire as that could be construed as an opinion about the employee and not a factual piece of information.
The role of the human resource personnel of checking references in making hiring decisions can become the basis for a defense in litigation relating to negligent hiring. Failure to properly screen an applicant can result in litigation if a new employee turns out to have a history of violence or other problems in the workplace which have caused harm to another. A negligent hiring claim can be defended if reference checks have been completed, can be documented and do not show any gaps which would have given rise to an inference of any problem.
John Brown , a former county maintenance worker, is looking for work elsewhere. On his application, he identifies the county as a former employer. The county human resource director is called about the employee and is leery about what to tell the prospective employer.
The same potential problems created by checking references exist for employers who provide references. The extent of information given can come back to haunt the employer. In the litigious world in which we live, employers are concerned about liability in responding to reference checks and have, of late, been advised that limiting their reference checks to name, rank and serial number is probably best.
If an employer says too much about a former employee, they may be subject to a defamation claim. This type of claim is raised by an employee who believes their privacy rights have been violated and that their "good name" may have been disparaged. While truth is always a defense to such claims, it is a good idea for employers to keep references they provide very factual and based only on personal knowledge to ensure the accuracy, and therefore truthfulness, of the reference. Asking the current prospective employer if they have obtained a release for the information they are seeking would also be a means to insulate the former employer from liability. Actually requiring a release would be the simplest way for the county/employer to limit future claims.
Former employers should be careful as well to watch out for references that could be deemed discriminatory under federal law. For example, a former employer could be sued for retaliation by a former, terminated employee if the former employer provides a negative reference to a new employer. Just like questions in an interview are limited so as not to appear discriminatory, information provided in a reference check should also be limited. .
Saying too little about an individual when contacted for a reference check can potentially result in liability for failing to warn the prospective employer about the applicant. There have been cases where a former employer did not disclose a former employee’s propensity for misconduct resulting in the former employer being sued for that failure when the former employee acted inappropriately in his new job. While this has not become the norm in many states, it is at least a signal of the degree to which the reference can be twisted.
In providing references about a former employee, avoid providing information that is unrelated to job performance. Identify and document the person requesting the information and document what information was actually provided. Any later claim that you provided certain types of information during a reference could be refuted by notes taken during the conversation or by copying forms completed.
Whenever possible, requests for reference checks should be directed to the Human Resource Department or to a limited number of persons, like department heads. To the extent that department heads will be providing such information, those persons need to understand the importance of consistency in responding to such reference inquiries. Being cautious not to provide gratuitous information should assist in limiting the negative data that is provided about a former employee. Rather than adopt a "no comment" policy about references, having a limited but clear practice in regard to information provided about a former employee should assist in limiting the potential liability of the employer in the long run.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.