Best Practices to Avoid Legal Pitfalls of Employee Reference Checks

Getting employee reference checks during the hiring process can feel something like a tightrope walk. You know it’s something you must do in order to avoid a potential negligent hiring lawsuit. At the same time, you’re afraid of different types of legal action if you do check references and mistakenly ask the wrong questions.


First, it’s always best to consult with your attorney before making any decisions about the best way to go about employee reference checks in your state. Each state has different laws relating to privacy, background checks, and information potential employers may request and use in the hiring process. These practices, with your attorney’s approval, of course, are great places to begin the reference check process.


Keep it Relevant


That’s the number one rule of thumb to follow when questioning references about a potential employee. Keep the questions away from personal information that could be considered discriminatory in nature, and keep them about issues that relate to the candidate’s ability to do the job.


The specific questions you must avoid while checking references include questions regarding age, race, disability, religion, sexual preference, political affiliation, etc. Your primary concerns should be about the applicant’s ability to perform the tasks and work well with others.


Conduct the Interview via Phone


Email is a great tool for the quick exchange of information. However, when you’re checking references there are sudden nuances that cannot be picked up in email. Face-to-face would be ideal, though it’s generally impractical. Over the phone is the next best thing. You can catch things in the voice of the person on the other end of the phone such as general fondness for the applicant, hesitation over questions, changes in pitch, dramatic pauses, and even discomfort at the questions you’re asking.


Of course, these aren’t the only benefits of conducting interviews over the phone. One other, important benefit is that you have instant access to follow up questions as they come to mind rather than playing phone tag or waiting for email responses.


Get Proper Releases


Make sure you have permission before you conduct a background check, obtain a credit report, or ask a single question of the candidate’s reference. This covers you and your company from liability that may stem from failing to do so. This is especially important if you’re conducting any type of background check that includes a credit score or consumer report regarding the candidate as it violates the Fair Credit Reporting Act (FCRA).


The employee reference check may seem like a potential minefield on the outside. Once you fully understand what is and is not acceptable to ask and use in the hiring process, you’ll feel much more confident in the role. Keep in mind, it’s important to be covered with business insurance in the event a lawsuit or claim is filed against you for your employee hiring practices.