Career / Personal Development
Employers agree that checking references is a critical part of the hiring process. Applicants with a successful work history are also eager to have their past successes communicated to potential employers. Yet the entire process often frustrates everyone.
Because of concerns over legal liabilities, many employers refuse to comment on job performance, and will only verify dates of employment, job titles and possibly salary. Yet those same employers would welcome in-depth reference information from other employers. As a result, good applicants are often unable to get the recommendations they deserve, while candidates with a negative history can go on to a new and unsuspecting employer.
The reason employers limit reference information is simple: They do not want to get sued for defamation. The hesitation exists despite recent changes in California law that protect employers from defamation lawsuits when giving job-related, credible and nonmalicious information when asked by a prospective employer.
Many labor attorneys still advise employers to verify only basic data and not answer questions on job performance, however, because there can be uncertainty in court over what is "credible evidence" or " job related."
Adding to the complexity is a recent California case that found a school district could be liable to a victim of sexual assault for giving a positive reference for a former employee and withholding negative information. If an employer gives a reference, the employer should generally give both the good and the bad.
Employers are arguably placed in a Catch-22. If they give a positive recommendation and leave out anything negative, a victim could sue them. If employers reveal negative information, however, they run the risk of being sued by a former employee for defamation. Since employers have no obligation.
Since employers have no obligation generally to say anything, many have adopted the approach of "no comment" when it comes to questions concerning job performance. Many will not even answer a question about whether a past employee is "eligible for rehire."
Several large employers, in fact, have deposited past employment information on a telephone service, limiting new employers to a computerized voice verifying just employment dates and job title.
Applicants still have many avenues available to communicate their past successes to employers, even if past employers will not give a reference. The key is to plan ahead and to remember the importance of promoting your own career by obtaining the materials necessary to successfully market yourself:
When leaving a job, clarify the past employer's policy on references and try to determine what will be said if a new employer calls.
If the former employer has a "no comment" policy, offer to sign a release of information.
Before leaving a job, try to obtain personal letters of recommendation. Even if the firm does not give references, a supervisor or co-worker may be willing to write a letter on the theory that it is a personal recommendation.
Seek a letter of recommendation from someone no longer at the firm, who can verify job performance.
Keep copies of outstanding performances appraisals- or keep an example of your work to show at an interview (provided it was proper to retain it).
Try to have references give specific examples. General statements like "great team player" are not nearly as strong as examples of behavior or performance in specific situations.
Retain pay stubs and other documents as a means of verifying past employment. When firms merge, go out of business of move, it can be difficult to confirm past employment. If the previous employment was through a contract with an outside agency, or was through an employee-leasing firm, the actual workplace may not have records of you.
It is also very important to accurately summarize the job duties and title for a previous job on a resume. Although everyone wants a resume to show them in the best light, a resume that overreaches can raise questions about honesty.
For applicants who are having difficulty finding a job and suspect that a previous employer is giving a bad reference, it may be helpful to think through the lack of success in more detail. There may be other difficulties involved, especially since firms are often hesitant to say anything negative. However, job applicants who are concerned should contact a labor lawyer to review their rights.
Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com
He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."
He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>
He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.
He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.
Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.
He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.
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