Being in the business of predictive, online reference checking, we are assuring people that reference checking is not, in fact, illegal.
There are legal considerations, however. We thought the below article
might help alleviate some of those concerns
* * * * *
Reference checking may be the most important element of a sound hiring process. Let’s face it: No one is better able predict the future
performance of your talent than past colleagues. It’s absolutely
critical to get that perspective.
Unfortunately, too often reference checking gets short shrift. It can seem like a huge waste of time. You probably won’t get a call back from
the majority of the references you contact. And even if they do
respond, their legal concerns usually prevent them from sharing useful
or accurate information about a candidate.
But the fact is that a good bit of the risk is only perceived. It’s not real. And the legal risks that are real may surprise you.
Let’s look at the difference between perception and reality and how you can reduce your company’s exposure.
Perception: Providing a reference check is legally risky
Reality: Only 2% of companies are targeted by reference-based defamation
This number comes from the 2004 Reference and Background Checking Survey Report compiled by the Society of HR Management. And those numbers haven’t
changed significantly since then—very few companies are taken to court
for providing a reference.
In fact, the same standard is applied to reference checking as to newspapers with libel suits. A candidate or employer needs to prove not
just harm but also malicious and dishonest intent—which is a very high
According to the U.S. Merit Systems Protection Board Report to Congress in 2005, “As a general rule, actionable legal claims result
from poor practice. They are not inherent in reference checking any more
than libel is inherent in newspaper publishing.”
Managers should of course avoid being insulting, but they can provide the facts.
Perception: Making positive comments or only providing “name, rank and serial number” eliminates the legal risk of references.
Reality: The real risk is negligent hiring
When you think about it, there could be risk not just in making negative comments, but positive comments as well. If you make positive
comments about a candidate and the prospective employer hires him and he
does poorly, that company could turn around and sue you as a former
employer for not disclosing complete information.
More than 40 states have reference immunity laws. These protect employers from civil liability for giving good-faith references or
negative, truthful information. Employers who knowingly disclose
information that is false or misleading are not protected under these
laws—and they lose 72% of those lawsuits.
So, yes, reference checking can be risky, but consider the risks of a hiring manager going into an ill-prepared interview and closing the door behind him. The whole hiring process is risky.
Fortunately there are ways to reduce the risk inherent in reference checking. With predictive, online reference checking (ORC), you use an
online questionnaire, job-validated data and then aggregate those
responses into one report. This way, you not only assuage references’
legal concerns—you also make your hiring process more effective and
Let’s look at some more real legal risks of reference checking and how to avoid them.
Real risk: Unstructured reference checking
When reference checking is unstructured, questions are developed usually by the hiring manager, based on her experience and what she
knows about the demands of the job. The problem is, that process of
questionnaire development is completely subjective, which means it’s
also biased. Bias is exactly what you don’t want in your hiring process if you want to avoid legal risk.
Online reference checking virtually eliminates bias because the tool derives reference questions based on data from high performers who have
done the job. Questions are close-ended and relevant to the position.
You’ve not only taken the subjectivity out of the reference check
process, you’ve also made the reference check a dramatically more
effective tool for predicting future performance.
Real risk: Reference’s perception of risk generates low response rates
If you hire without getting reasonable response on your reference checks, you’re hiring with only a partial view of your candidate.
Without the full picture, you’re risking poor performance and increased
So how do you help references be more forthcoming about their former colleague?
First of all, you grant them anonymity. With ORC, you can require a minimum number of responses that are all aggregated anonymously into one
report. Letting references know this as they begin the survey makes
them more comfortable being honest.
Actual reference answers are combined and scored with the answers of the other references. Names, company, job title, contact information and relationship history (to the candidate) are fully disclosed so you know who completed the reference, but how they specifically rated the candidate is
Second, you let the reference request come from the candidate. Think about the dynamic with phone-based reference checking: an HR
representative—a stranger to the reference—is calling on behalf of the
reference’s former colleague, who may also be a friend. Most people, if
they return the call at all, will tend to want to help out their buddy
and this can result in “rosier,” less accurate responses.
But since ORC collects responses via a candidate-sent survey link, references are more inclined to complete the survey. In fact, our data
for ChequedReference, our ORC tool, shows better than 80% of references
will respond with the needed data, and not just “name rank and serial
number,” despite corporate policies.
Plus, since that survey is formulated to make providing the “right answer” hard to do, responses are more accurate. You’re more likely to
elicit responses that reflect the candidate’s true behaviors, traits and
Reference checking, like any other component of the hiring process, can have risks. Common sense can aid in the process a great deal. New
technologies such as predictive, online reference checking can also
provide not only legal protection but a far better, more reliable and
more efficient hire.
If you’d like to learn more, you might be interested in reading our new eBook called Reference Checking Isn't a Waste of Time ... You're Just Doing it Wrong, which looks at hoe to implement an impactful reference checking program in your company.