Jeff on Call: What Can I Ask In a Reference Check?

Q: What can I ask in a reference check?

As many personal and professional questions as you like. Just be sure you have the consent of the candidate in writing. There are no specific restrictions, but of course don’t cross the line into asking about:

Race
Religion
Sexual Preference
Age
Physical Characteristics
Mental Health
Marital Status
Family Responsibilities

As long as you have the consent of the candidate, disclosure is the reference’s problem.

There should be a law against reference checking. It’s the most subjective, easily contrived and inaccurate way possible to gauge who will become a successful employee.

The area of law is known as defamation or defamation of character. There are two types — libel (written) and slander (oral). Three probes can be used to find out if you have a problem.

The communication must be likely to interfere with the candidate’s employment.
The communication must be false. (How do you know? Attempt to verify it, and document your efforts. This may be enough to prove your allegation.)
The communication must be represented as fact rather than opinion. (“John was absent from work at least two days each month.”, not “John seemed to be absent from work a lot.”)

Since employment is considered important, false statements of fact are presumed (legally assumed) to be malicious (defamation per se) invoking punitive and exemplary damages without the usual burden of proof.

Fortunately, a majority of states have recognized a conditional privilege to protect those who obtain information about a prospective employee on behalf of a client. This was acknowledged in a typical case involving a nurse’s registry. (Judge v. Rockford Memorial Hospital, 17 IllApp2d 161, 217 P2d 687)

If you want to get candidates hired like crazy, pick up a copy of my book The Perfect Job Reference. It’s currently out of print, but you can get a copy from your library, used bookstore, or by Googling the title on the Internet.

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.