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

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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.

  1. The communication must be likely to interfere with the candidate’s employment.
  2. 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.)
  3. 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.

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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.

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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