A Reference Check Double Standard

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Recently, I was asked how I felt about requiring applicants, whom an organization wishes to hire, to provide three individual references.  These three would be asked to vouch for the applicant’s work-related performance.  This was asked in light of the fact that this hiring organization itself has a reference neutral policy, i.e., they only provide dates of employment, position title, and, if the former employee authorizes it, his/her salary.

Isn’t this a double standard?

Reasons to Conduct

According to the Society for Human Resource Management (SHRM’s) “Conducting Background Investigations and Reference Checks”, October 4, 2016, “There are many reasons employers conduct appropriate levels of screening for prospective employees through a background investigation, a reference check or both.

Avoiding injury

A major reason to conduct background and reference checks is to avoid harm or legal liability of various types to the employer or to others—for example, harm to:

  • The employer’s business through financial loss or image and reputational issues.
  • Other employees by sexual harassment or workplace violence.
  • The organization’s customers by, for example, sexual assault on business premises.
  • The public by negligent driving.

Litigation defense

Defense of legal claims—negligent hiring and retention, as examples—is a compelling reason to conduct in-depth criminal records searches of job applicants. A multilevel jurisdictional criminal records search can be strong evidence that the employer exercised due care in hiring.

Maximize productivity

Hire the best and reject the rest, the saying goes. Typically, past performance is a strong indicator of future performance and can reveal an individual’s professionalism, productivity, job skills and interpersonal communication abilities. A reference check helps distinguish between a true high flier and a mere poser.

In addition to verifying past employment (dates of employment, job titles, duties performed, circumstances of separation, and compensation), you want to determine qualifications, and verify authenticity of any reference letters received.

Trends

A variety of developments and trends in society at large are reflected in trends associated with background screening and reference checks.

Frequency of use

Surveys conducted by SHRM and other organizations reveal a trend toward greater use of background investigations and reference checks in employment. This trend is driven by several factors, including:

  • Security issues in a post-Sept. 11 world.
  • New legislation, particularly in the area of immigration law enforcement.
  • Technological advances that make background investigations faster and more economical.
  • Increased awareness of the various risks of failure to conduct adequate background checks.
  • A rise in the willingness of applicants to misrepresent their credentials.
  • Increasing competition among applicants due to the dearth of new jobs in a post-recession environment.

Types of findings

According to a 2014 CareerBuilder.com survey,1 industries that appear to encounter fraudulent resumes most often are:

  • Financial services (73%).
  • Leisure & Hospitality (71%).
  • Health Care (63%).
  • Information technology (63%).
  • Retail (59%).

In a 2015 SterlingBackcheck report,2 the manufacturing industry lead with the highest criminal record hit ratios.”

So, what should an organization do?

Employment attorneys will advise that a reference neutral policy is the safest way for an organization to go in terms of risk mitigation.

Whether or not you are part of an organization which requires employment-related references as part of your hiring process, we recommend that you begin or continue this practice as part of your due diligence.  You may be questioned as to why you should expect other organizations to do what you, yourself, are unwilling to do.  The short answer is that while this is a double standard, other organizations can always decline to provide performance-related references to your organization too.

Thoughts?

the HRmeister

 

Endnotes

1CareerBuilder.com. (2014, Aug. 7). Fifty-eight Percent of Employers Have Caught a Lie on a Resume, According to a New CareerBuilder Survey [press release]. Retrieved from http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=8%2F7%2F2014&id=pr837&ed=12%2F31%2F2014

2SterlingBackcheck. (2015). Background Screening Trends & Best Practices Report 2015-2016. Retrieved from http://webcache.googleusercontent.com/search?q=cache:54Nb19JJ4GMJ:www.sterlingtalentsolutions.com/~/media/Sterling%2520Backcheck/PDFs/reports/SterlingBackcheck_Benchmarking_Report_2015.ashx+&cd=1&hl=en&ct=clnk&gl=us

Employment References – What would you do in this case?

Eddie
Eddie (Photo credit: walliscottage)

Michele Sommer posed this interesting case study on LinkedIn’s ‘Employee Relations Forum’ on 01.25.13.  Here’s her post:

“Chris is the Operations Manager for a package delivery firm, and he terminated Eddie, who was a driver delivery person. Eddie was terminated for driving while under the influence, as well as picking up young girls for sexual purposes. Chris has received a call from a company wishing to hire Eddie.  He planned to give the standard response that company policy would only allow confirmation of dates of employment and position held.  However, Chris was informed that the position required the driving of a school bus and included overnight trips.  Chris is now unsure of how to respond.  Does he stick to company policy and provide dates of employment only and hope that Eddie doesn’t repeat his behavior, or if he does, that his new employer doesn’t come after the firm for not fully disclosing the information they had?  Or does he give the potential employer the real reason Eddie is no longer with the firm and take the chance that Eddie won’t sue?

There are ways to mitigate the risk of each option, yet most companies have a strict policy that will allow providing only dates of employment or position held.  What is your company policy?  What ways does your company mitigate risk?  What would you do in this particular case”?

Responses to Michele’s post included:

–  indicate that the employee is not eligible for re-hire – it’s honest, and though it does not say why, it mitigates some risk, though larger more risk-aversive companies won’t provide this information

–  another replied that since the new position requires Eddie to drive a school bus, this falls under DOT regulations, and Chris might be required to divulge this information.

–  one technique which has been used is to say, “While I can’t share the reason that Eddie left, I can confirm whether what he told you was accurate.”  Then if they say anything other than the real reason that Eddie left, they can say, “No.  That’s not accurate”, and leave it at that.

–  one replied that the DUI might be a matter of public record if it involved a citation/conviction, so the prospective employer should be doing its due diligence.  This same person added, “As for the sexual purposes point, since he will be involved with minors who are under the care of a public agency (school district) the question for me is do the needs of public safety for minors outweigh his need for privacy.  I’ll let the lawyers deal with that one”.

–  one piece of advice offered (and the HRMeister couldn’t agree more with) is that Chris should seek the counsel of Human Resources and general counsel before he answers any inquiries from Eddie’s prospective employers.  And most importantly, is the question as to whether he should be answering any questions at all, given company policy.

–  others wonder whether the company contacted the Police on these matters, were the girls ‘under age’, did the company conduct an investigation, has he lost his driver’s license, etc.

–  finally, one replied: “…telling the prospective employer that you need to check before you can answer this or that question or to refer them to HR (with no other detail as to what the issue might be) should be enough of a hint that they need to probe further (unless they need a piano to fall on them)”.

the HRMeister finds this to be a difficult case study.  On the one hand, if the company has a reference neutral policy, Chris (or anyone else) would not provide any employment-related references.  On the other hand, is whether the company has any moral or ethical obligation to answer any of Eddie’s potential employers’ queries with fact-based answers irregardless of whether Eddie finds out, and possibly sues the company for providing any information which may prevent his employment.  The intention being, to possibly prevent any future instances of his past behavior.

There is no easy answer here.  All companies should conduct thorough background checks on prospective hires.  That may be enough to mitigate any risk of Eddie repeating his misbehavior.  Following your company policy with regard to providing references may be the right answer.  If in doubt, consult with Human Resources, inside general counsel, and possibly, outside general counsel to come up with the best recommendation on how best to handle this case.

Thoughts?

Good luck.

theHRMeister