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Since 1977, Kirschenbaum & Kirschenbaum, has provided the highest quality legal advice and services, whether litigous or transactional.

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Reference Checks

Provided by: Judge Ruth B. Kraft

It is important to check references for a variety of reasons. It is vital to verify that the information on a resume is accurate and that the prospective employee is capable of performing the job functions. The legal issues surrounding background checks, including criminal checks, and consumer credit checks are complicated by the requirements of the Fair Credit Reporting Act (FCRA). These will be covered in a future blog posting. Today, I want to focus on reference checks. These checks should be performed prior to an offer of employment. If you accept the candidate on face value and learn subsequently that the educational background was not as represented, for unemployment purposes, the employee will not be deemed to have provoked his own discharge and will be held eligible to receive benefits-at your expense!! Therefore, I do not recommend making a contingent offer. Do the due diligence first and save yourselves the aggravation and disruption. Here are Judge Ruth’s five recommendations for conducting legal, effective reference checks:
 
  1. Require that all applicants sign written releases.  Do not check a reference before obtaining the candidate’s written permission to do so. Consent is a defense to defamation.  The consent form should include a release of the employer and its agents, as well as former employers and reference givers, from legal liability that may result from the verification.
  2. Get job related information from the applicant before conducting the reference check.  Request that applicants provide background documents such as pay stubs, business cards, job descriptions and performance evaluations.  This will verify the information provided in the resume and identify potential issues.
  3. Minimize reference resistance.  It is common for references to be guarded or defensive since they may be trying to limit legal exposure by only acknowledging the dates of employment.  Fax or email the signed consent and release before requesting information or get the applicant involved; ask the applicant to notify references in advance so they will accept your call.
  4. Keep it simple and keep it relevant.  Create a basic checklist of questions and use it for all applicants.  The basics include dates of employment, position, and pay rate but it is important to add open-ended questions about skill sets, strengths, weaknesses, and work habits.  It is reasonable to inquire about performance and disciplinary actions, eligibility for rehire and reasons for leaving.  It is up to the reference to decide whether it will answer the questions but you have performed your due diligence by making the inquiry!
  5. Document all responses to help protect against negligent hiring, defamation and other lawsuits.  Document any refusal to cooperate or to provide information as well!
 
Happy hiring!!

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.

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