Overview: One potential form of employee background check is the reference check. Conducting reference checks on prospective job candidates allows an employer to verify the information that a prospective employee has provided to the employer on a resume and/or a job application. By checking these references, employers may receive information that helps them gain invaluable insight on a candidate's ability to work with others and obtain information about an individual's attributes related to the job. However, employers must use caution when checking references to avoid questioning references about topics that violate, or tend to violate, the law.
Prospective employers should not be deterred from contacting a candidate's current employer. Although some employers may be reluctant to share negative information about past employees for fear of defamation claims, in several states, employers that provide references at the request of the employee or former employee to a prospective employer are immune from legal action by the employee if the disclosures are made in good faith. In all instances, employers should document their efforts to verify the information the candidate has provided.
In order to avoid exposure to a negligent hiring claim, performing a reference check is the minimum that any employer should do in screening potential employees. Any inconsistencies that cannot be easily explained are usually an employer's first red flag.
Trends: With social media sites at their fingertips, employers can check a prospective employee's references easily. However, if employers use social media to check a candidate's references they should use caution because they may become privy to information that should not be used as a basis in their hiring decision, such as disabilities or health issues. As such, it is a good idea to separate the roles of searcher and decision-maker when verifying references through social media.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect forthcoming amendments to the New Mexico Human Rights Act regarding pregnancy discrimination and accommodations.
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Updated to reflect law protecting employers from negligent hiring claims, effective December 27, 2018.
Updated to include forthcoming amendments to California defamation protections.
HR guidance on conducting reference checks.