Staff Matters Newsletter September/October 1996
Reference Checking: Not an illegal move
By Steve O'Connor

This one I'll never understand. Why do we let 16-year-old children drop out of high school? This is a decision that could seriously damage the rest of their life and the school system says, "Hey, they're 16, let them choose." Let them choose? Geeze Louise, most 16-year-olds I know don't look any further ahead than Friday night's football game or the next Smashing Pumpkins concert. Nor should they. These are kids that have curfews, can't enter into a legally-binding contract, and aren't suppose to be buying cigarettes. But hey, want to drop out of high school and screw-up your future, no problem. Is it just me or is this crazy? Don't get me started.

Another thing I don't understand is why reference checking on a potential employee has become so difficult. Granted, there are a lot of legal pitfalls that you need to be careful of, but much of the problem is based on myths and a fear of being sued. Fortunately, that legal situation has gotten much better in recent months with the passage of a piece of legislation that limits a previous employer's legal exposure when providing documented (and that's the key - documented) reference information. Public Act 90 (1996) provides that an employer may disclose to an employee, or that individual's prospective employer, information relating to the individual's job performance that is documented in the personnel file. When this disclosure is done in good faith, the employer is immune from civil liability. As a result, the protection that this law provides is only as good as the documentation (i.e. performance appraisals, anecdotal entries, progressive discipline policy documentation, etc.) that records the employee's performance (good and bad) while he or she worked for you.

Edward C. Andler, president of Certified Reference Checking Co., St. Louis, says myths cripple the hiring process. "We all used to (check references on job applicants)," says Andler, author of The Only Complete Reference Checking Handbook. "Now most of us won't, or think we can't, and may even refuse to cooperate with someone who is."

Andler believes that too many employers fear that checking references will prompt lawsuits. "As a result," he says, "the selection process increasingly fails its key purpose to weed out poor performers." Andler recommends the debunking of the following myths.

Checking references is a waste of time because people won't talk to you. Approach a reference professionally, ask work-related questions, focus on specifics, and you can usually learn what you need to know.

It's illegal to give out information about a former employee. According to Andler, this belief is an "over-action" to a small number of employment-related lawsuits. The legal pendulum is now swinging the other way as employers are hit with negligent hiring suits.

It's hard to know whom to contact. Discuss references during the interview. Also, inform the candidate at the outset that references will be checked and jot down names as they come up in the discussion.

It takes too much time to locate references. Ask candidates to contact their references and request that they call the potential employer.

If we use these tactics, we will get the information we need to make an intelligent hire decision and stay out of trouble. Speaking of staying out of trouble, less teens would be in trouble if they were in school where they belong. Don't get me started.