When trying to evaluate a candidate using feedback from their references, it’s frustrating to get a stone wall response from these references, who say they cannot provide you with the info you’re looking for.
You want to know everything about what it’s like to work with the candidate, and simply getting the dates of their employment and their job title, while important to verify, doesn’t tell you much about their job performance.
References are required for virtually all job applications, so why do we so often get so little from the references provided to us? How can we get much more and learn meaningful details at the same time?
The Legality of Reference Checks
A common misconception is that it’s illegal to ask references for information beyond anything confirming that the candidate did, in fact, work for the company for the period of time they claim to have worked.
This misconception arises from the widespread use of “no reference” policies by companies, which usually bar current employees from giving out anything but the barest information on current and past employees.
There are no federal laws preventing them from giving you more info on your candidate, just company policies aimed at reducing risk of liability for discrimination and/or defamation.
And with good reason. The EEOC secured $484 million for victims of discrimination in the workplace in 2017, and for many companies, these risks outweigh the benefit of providing a detailed reference for former employees.
If a candidate worked for a company with a strict “no reference” policy, here are some potential workarounds that you can use to gather info on the candidate:
Ask for references from former employees of the company
Former employees of your candidate’s reference employer can usually tell you whatever you want to know about the candidate.
These people would be classified as “personal references,” but they can still give you insight into a candidate’s professional strengths and weaknesses.
Evaluate performance reviews
If a candidate can produce a complete record of performance reviews, then these documents can be used too in much the same way as a reference.
Just be sure to evaluate the documents before you critically, as an incomplete collection of performance reviews can be a deliberate omission on the part of the candidate.
Reference Check Laws
When examining any legal issue, it’s important to consider how both state and federal laws apply.
Federal Law for Reference Checks
The main federal laws that apply to reference checks are related to discrimination and defamation.
These are the criteria for a discriminatory reference:
It is illegal for an employer to give a negative or false employment reference (or refuse to give a reference) because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
And these are the criteria that must be met for a successful defamation suit:
- The employer made a false statement of fact about the employee.
- The employer “published” the statement.
- The employer knew or should have known that the statement was false.
- The statement was not privileged.
- The employee suffered harm because of the false statement.
As you check the references of applicants, you must be sure that any negative reference you receive is free from discriminatory bias. It is also crucial to get enough references to account for bias from a single reference, as a small number of references can give disproportionate weight to biased or even discriminatory feedback.
Account for bias and discrimination from references and be vigilant. Otherwise you may be entangled in a defamation and/or discrimination lawsuit involving the candidate and the reference they mistakenly trusted and provided you with.
State Laws for Reference Checks
Every state has different restrictions on the information that employers can provide about current and former employees.
For instance, while you can ask former employers in Colorado about a candidate’s “job performance,” “the reasons for their termination or separation,” their “knowledge, qualifications, skills, or abilities”, their “eligibility for rehire” and “their work-related habits,” you can only request information on “job performance” from an employer in Illinois.
This being the case, it is essential to find the restrictions on what information references can legally provide in your state.
Once you know what information references can legally provide, you will be able to tailor your reference interview questions to these restrictions and avoid wasting time on questions that cannot legally be answered.
Reference Checks Legal Issues
Here are some of the most common legal issues that arise from reference checks and how to avoid these issues.
Discrimination in Reference Checking
Bias and discrimination have no place at work, but these factors are at play every day, especially when it comes to who gets what kind of recommendation.
When interviewing a candidate’s references, it is essential that any bias or discriminatory leaning is identified and that enough references are contacted to mitigate the possibility of a biased or discriminatory reference being accepted as a legitimate reference.
It is also crucial that “protected class” information uncovered in the reference checking process does not affect the ultimate hiring decision that is made.
The following candidate information categories are considered “protected class” and cannot be a factor in the ultimate hiring decision that is made:
- Race
- Height & Weight
- Financial Information
- Unemployed Status
- Background Checks
- Religious Affiliation Or Beliefs
- Citizenship
- Marital Status, Number Of Children
- Gender
- Disability
- Medical Questions & Examinations
Avoiding this issue:
NEVER ask a candidate’s references for protected class information regarding the candidate.
ALWAYS be vigilant for bias or discrimination in references, especially bias and discrimination that is related to protected class information.
ALWAYS try to get enough references to establish a trend of candidate performance and to act as a buffer against biased and discriminatory references.
NEVER use protected class information as part of your hiring decision.
Disorganized or Unstructured Reference Checking
Having a disorganized or unstructured reference checking process means that the references your candidates provide are not being engaged in an organized and standardized way.
Besides decreasing the usefulness of the data you’re collecting, a disorganized or unstructured reference checking process puts you at greater risk of missing crucial candidate information.
While missing some candidate information may cause you to overlook a great candidate, missing other information can lead you to think that a terrible or even a dangerous candidate is qualified for the job.
A non-standardized reference checking process also increases the likelihood that personal bias or discriminatory bias in a reference enters into the final decision on a candidate.
Avoiding this issue:
ALWAYS have a standardized reference check process in place that ensures all candidate references are asked the same questions and that their answers are recorded fully and accurately.
Negligent Hiring & Negligent Referrals
On the other side of the reference legality question is negligent hiring and negligent referrals.
Negligent hiring is making a hire when information that reasonably should have been uncovered to disqualify the candidate was not discovered or properly considered.
For example, negligent hiring would be making a hire without checking and vetting their references and/or without performing a background check.
A negligent referral, on the other hand, is when a candidate’s former employer fails to disclose information that would have disqualified a candidate from being hired.
For example, a negligent referral would be a former employer failing to disclose that an employee was fired for sexual misconduct or violence in the workplace.
Avoiding this issue:
ALWAYS ask references about a candidate’s workplace behavior, ethics and the reason that they left the company.
ALWAYS be vigilant for evidence that a reference is not telling the whole truth about a candidate.
NEVER make a hire without checking and vetting references and performing a background check.
Avoid Reference Bias by Collecting Enough Data
So now you know you need to check for references to avoid negligent hiring and you know you need to gather a fair amount of references to account for bias, but how do you get enough feedback?
Recruiters spend on average 72 minutes per candidates chasing down references on the phone. The result of their exhausting phone time? Feedback from just 2 references on average. No wonder recruiters have been known to avoid phone references when they can.
In contrast, when using a tool like Harver Reference to automate reference checking, it takes recruiters an average of 2 minutes per candidates, collecting around 6 references in less than 48 hours.
Gathering so many references, so quickly is a great way to avoid individual bias and gather collective intelligence — significant data points from many references leading to higher quality information on the candidate.
Standardize Reference Questions for Compliance
Even if you follow this detailed list of do’s and don’ts who is to say that all recruiters in your department or at your company will do the same? The best way to ensure you avoid using protected class information, or allow in any other biases for that matter, and remain legally compliant, would be to standardize the reference questions across your candidates.
A reference checking tool like Harver Reference allows you to customize and then standardize the reference questions so the information gathering is tailored by job or department, but structured and consistent, following all pertinent laws.
Legal Reference Questions
As long as you aren’t asking for information that is of a “protected class” or that is restricted by your state’s laws, then you can ask references quite a lot about your candidate.
But, before you try and ask references anything about your candidate, you should save yourself some time and ask this all important question: What is your company’s policy for providing professional references?
By understanding what information a reference can provide you with from the beginning, you can tailor your interview to this constraint and avoid the frustration of running into that brick wall over and over again.
Once you learn what questions a reference can answer, ask questions like these to find the critical aptitude, job performance and fit information that references can provide:
- Can you verify the details of the candidate’s employment (start and end dates, salary, position, etc.)?
- Why did the candidate leave the company?
- What is your professional relationship to the candidate and how did it begin?
- How long have you worked with the candidate or how long did you work with them?
- What were the candidate’s responsibilities while working at the role(s) at your company?
- In your experience, what are the candidate’s professional strengths and how were they an asset for their team and your company?
- In your experience, do you think that the candidate has any shortcomings at work or any areas that should be improved?
- How would you rate the candidate’s overall job performance from poor to fantastic? What, specifically, has led you to rate them in this way?
- Is the candidate eligible to be re-hired?
- Do you believe that the candidate is qualified for the job they are applying for at my company? What, specifically, qualifies or disqualifies them?
- Were there any workplace conduct or ethical incidents caused by this candidate when they worked for your company?
How to modernize your reference checking process
Look into Harver Reference as a potential solution for saving time and increasing standardization of your reference checking process.
[Disclaimer: This website contains general information about legal matters. The information is not advice, and should not be treated as such.]
