Knauft recommends the following practices, especially for employers in multiple states, to avoid legal liability when providing employment references: These people would be classified as “personal references,” but they can still give you insight into a candidate`s professional strengths and weaknesses. Recruiters spend an average of 72 minutes per candidate tracking references over the phone. The result of their exhausting phone time? Feedback from an average of only 2 references. No wonder recruiters are known to avoid phone references when they can. An unorganized or unstructured reference review process means that the references provided by your candidates are not engaged in an organized and standardized manner. If you don`t receive offers for jobs you`re qualified for and suspect it could be due to negative referrals, talk about it. You can ask a potential employer why they decided not to renew an offer (they may not tell you), and you can talk to a lawyer about your rights. On the other side of the question of legality of reference are negligent attitudes and negligent recommendations. ALWAYS be vigilant for bias or discrimination in references, especially bias and discrimination related to protected class information. In contrast, when using a platform like Checkster to automate reference checks, recruiters take an average of 2 minutes per candidate and collect about 6 referrals in less than 48 hours.
Now you know you need to look for references to avoid negligent hiring, and you know you need to collect a reasonable number of references to account for bias, but how do you get enough feedback? In general, the law does not prohibit an employer from sharing truthful information about a former employee with a potential employer. There is little reason in the law to discourage employers from making honest assessments of an employee`s performance, whether that rating is good or bad. However, crossing the line in false statements or outright lies could make a bad reference illegal. Legal actions based on misrepresentation in employment references are typically based on defamation laws that prohibit anyone, including employers, from knowingly publishing or disseminating false information about others. A full reference gives more detail – but it still needs to be accurate and not misleading. For this reason, many employers stick to factual references, as there`s no room for error, McLean says. References are required for virtually every application, so why do we so often get so few of the references provided to us? How can we get so much more and learn meaningful details at the same time? When you`re trying to rank a candidate based on their references` comments, it`s frustrating to get a stonewall response from those testimonials saying they can`t give you the information you`re looking for. In addition, some states are adopting stricter laws regarding retaliation or false reprimands against a former employee. For example, California law makes it an offense for a former employer to “use a false statement to prevent his former employee from obtaining employment.” Once you know what information references can legally provide, you can tailor your reference interview questions to these limitations and avoid wasting time on questions that cannot be legally answered. ALWAYS try to get enough references to establish a candidate performance trend and act as a buffer against biased and discriminatory references.
Solicit references from former company employees Gathering so many references so quickly is a great way to avoid individual bias and gather collective intelligence – meaningful data points from many references that lead to better quality information about the candidate. Once you`ve learned what questions a reference can answer, ask questions like this to find the critical information about relevance, job performance, and fit that references can provide: “In practice, employers are reluctant to give bad references because they can face lawsuits if they are not 100% accurate,” she adds. When reviewing candidates` references, you should ensure that any negative referrals you receive are free from discriminatory bias. It is also important to obtain enough references to account for the biases of a single reference, as a small number of references can give disproportionate weight to biased or even discriminatory feedback. NEVER ask a candidate`s references for protected class information about the candidate. In this case, it is important to find the restrictions on the information that references can legally provide in your state. Consider bias and discrimination through referrals and be vigilant. Otherwise, you could be involved in a defamation and/or discrimination lawsuit involving the candidate and the reference they wrongly trusted and provided to you. But before you try to ask for references on your candidate, save time and ask yourself this important question: What is your company`s policy on professional references? “I also recommend that you check your references carefully in advance.
If you are concerned about what a previous employer might say, offer an alternative. Maybe you`ll start with LinkedIn connections that previously gave you recommendations. A former employer may legally refuse to provide information about an employee other than their official title and date of employment. While this is legal, it is generally considered as bad as a negative review, according to reference website References-Etc. If you choose to decline to answer certain questions asked during a referral request, you may apply this policy to all references you provide and not to a single person. References-Etc states that “there have been cases where it has been successfully argued that an employer has discriminated against an employee because it does not apply the same policy to all its employees.” As long as you don`t ask for information that belongs to a “protected class” or is restricted by your state`s laws, you can ask for a lot of references about your candidate. When interviewing a candidate`s references, it is important that any discriminatory bias or inclination be identified and that sufficient references are contacted to reduce the possibility that a biased or discriminatory reference will be accepted as a legitimate reference. A common misconception is that it is illegal to ask for references for information beyond anything that confirms that the candidate actually worked during the period in which they claim to have worked. ALWAYS have a standardized reference review process that ensures that all candidates` references are asked the same questions and that their answers are recorded completely and accurately.
If you believe you have been retaliated against by a former employer, or would like to learn more about your employment referral rights, contact Miller and Steiert, P.C. for more information. ALWAYS find out about a candidate`s behavior in the workplace, their ethics, and why they left the company. A job seeker`s chances of getting a job can easily be torpedoed by a bad referral from a previous employer. As suggested above, a previous employer can only make a bad reference illegal by deviating from the truth. However, any defamation case presents practical challenges, some of which are exacerbated in the context of employment credentials. For example, a negligent hire would hire without verifying and verifying their credentials and/or conducting background checks. Navigating the sometimes rough waters of the job market can be difficult for everyone, but it`s especially frustrating when a former employer speaks negatively about your performance. If you`re looking for a job and find that things are going well until potential employers contact your references, you could be the victim of work-related retaliation. The bad news is that you`ve probably missed out on a few great opportunities because of previous experience. The good news is that you have rights and you can take legal action.
You should only provide information about employment-related details in a reference. You should not discuss personal details about an employee that may include references to their race, religion, age or disability status. In addition, you should never mention ethnic origin, marital status, parental duties or sexual orientation when requesting a reference.