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Why Reference Checks Are a Waste of Time

If you’re an employer who asks applicants to provide you with a list of references to contact, you might want to stop for two reasons: 1) the list will probably only include people who will say good things about them, and 2) it might include people who have no direct knowledge about their work experience (indeed, I was asked by an acquaintance to be a job reference and I had no idea what she did for a living).

Instead of contacting references, I suggest that you contact previous employers.

You might have the impression that previous employers are legally prevented from saying anything about former employees. Not true, says Bakersfield employment attorney David Blaine: “California law actually allows employers to discuss a former employee’s job performance, qualifications, and eligibility for rehire with a prospective employer as long as it is truthful and done without malice.”

Additionally, failure to contact previous employers could result in a negligent hiring lawsuit if you hire someone who causes harm while on the job and you might have been able to prevent it by talking to their former boss. Having said that, there are some things you need to know before you pick up the phone.

First, you need to get the applicant’s permission by having them initial an authorization statement on an employment application or signing a separate release that allows you to investigate their work record and releases you and previous employers from liability related to such investigation.

Then create a list of questions that you will ask former employers or their agents (such as supervisors or HR personnel) of all applicants applying for the same job. You probably won’t get the applicant’s permission to contact their current employer, which is fine because employers who know that employees are seeking employment elsewhere sometimes send them packing. Also, it’s important to go through the process for all applicants applying for the same job in order to avoid discrimination claims.

You may contact previous employers or their agents however you wish to; however, I prefer calling them because they usually provide more information while talking than in writing. Let them know the applicant has applied for a position with your company and given you authorization to contact them (you’ll probably need to email or fax the authorization form before they’ll talk).

Then ask them the questions from your list, such as:

  • What were the applicant’s job title, duties, and dates of employment?
  • How well do you know the applicant?
  • How would you describe the applicant’s work performance?
  • What was it like working with the applicant?
  • What are the applicant’s strengths and weaknesses?
  • Was the applicant dependable?
  • Why did the applicant leave your company?
  • Would you rehire the applicant?
  • Is there anything else I should know about the applicant?

Any questions and follow-up questions that are job-related are permissible as long as they don’t pertain to any of the protected classes (such as “what is the applicant’s religion?” or “how old is the applicant?”).

Of course, just because the law allows previous employers and their agents to answer these questions doesn’t mean they will. Most will only provide information about position held, dates of employment, and whether they would rehire the applicant or not. That’s ok because, according to a PrideStaff Report, 44% of applicants provide false or misleading information about their work history (such as position held and dates of employment); therefore, obtaining that information alone might be all you need to know about the applicant.

Finally, applicants who don’t have a previous employer should be asked to provide a list of references that includes teachers, coaches, etc. Otherwise, refrain from asking for references because contacting a list of people an applicant wants you to talk to will most likely be a waste of your time.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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