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What’s Legal In Reference Checking? Jeff Has The Answer


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Hi Jeff,

A question came up today on reference checking and what recruiters can do and can’t do.

We have heard that we as recruiters, can only check the references that the candidate provides to us. We are not legally allowed to do a ‘back door’ reference, that is, someone who knows the candidate, but was not given to us by the candidate, i.e., we do not have the candidate’s permission to use this individual as a reference.

We understand that an employer can use a ‘back door’ reference, and talk to someone that knows the candidate, but was not given by the candidate as a reference to the employer.

Additionally, we have heard that a candidate has the legal right to request what was said about them by a reference, and that we as recruiters must provide this information if requested by the candidate.

As you can imagine, this puts us in some awkward situations, and I would like to know what are we legally obligated to do in the area of reference checking?

Sincerely, Al

Hi Al,

Terrific questions from one of our most respected practitioners! Thanks for subscribing and asking.

There is no limitation on the pre-employment references that can be contacted unless the candidate specifically requests this. However, no reference checking whatsoever should be done without the written consent of the candidate. The candidate also has an absolute right to any reference checks that are forwarded to a client.

I highly recommend reference checking when you’re actively working a candidate. That’s why I wrote the only book of its kind, The Perfect Job Reference. That’s also why it was a bestseller and remains one of the most requested library references on the shelves.

The failure to check references before a sendout –- or not do it thoroughly enough –- results in some very nasty disputes. Legally, they include placement malpractice (negligence), breach of fiduciary duty (failure to protect the client), fraud (intentional misrepresentation), and even conspiracy to defraud (with the candidate) alleged by damaged clients. Please don’t rely on their reference checking. You can be sure they won’t when they come after you –- big time.

Your E&O (errors and omissions) insurance may cover “errors” and “omissions,” but there’s no money in those allegations. The money is in the allegations of intentional wrongdoing. “Terrors” and “commissions” aren’t covered.

So count on that being the focus of any threat or actual lawsuit. Also count on punitive (to punish) and exemplary (to set an example) damages (in an unlimited amount in the discretion of the judge or jury) being alleged.

Then count on any E&O carrier writing you a “reservation of rights” letter telling you to forget about any coverage for intentional acts. What’s intentional? Deciding to send someone out without checking his representations? Of course! “Deciding” is intentional!

Fortunately, a majority of states have recognized a privilege to protect those who obtain information about a prospective employee on behalf of a client. This was acknowledged in an Illinois case (where you are) involving a nurse’s registry. Judge v. Rockford Memorial Hospital, 17 IllApp2d 161, 217 P2d 687.

Not just any consent in writing from the candidate will do. It must be carefully drafted, current, and airtight. Otherwise, you will run into invasion of privacy allegations (punitive and exemplary damages stuff) if you pass any of the information along to a client.

So as my gift to you and the rest of the Fordyce fans looking to protect themselves, I’m going to send you our candidate Reference Check Authorization and Release. Keep in mind that the statutes, cases and administrative rulings at the federal level and in each of the states change. So always check with your lawyer for updates.

It’s too long to include in a JOC column, so to open the gift:

  1. Go to www.placementlaw.com,
  2. Click the red JEFF’S ON CALL! button.
  3. Type Reference Check Authorization and Release in the Subject field.
  4. Click Send.

I’ll reply with the Authorization and Release.

Thanks, Al!

Jeff

 

Hi Jeff,

A question came up today on reference checking and what recruiters can do and can?t do. We have ?heard? that we as recruiters, can only check the references that the candidate provides to us. We are not legally allowed to do a ?back door? reference, that is, someone who knows the candidate, but was not given to us by the candidate, i.e., we do not have the candidate?s permission to use this individual as a reference.

 

We understand that a employer can use a ?back door? reference and talk to someone that knows the candidate but was not given by the candidate as a reference to the employer.

 

Additionally, we have heard that a candidate has the legal right to request what was said about them by a reference and that we as recruiters must provide this information if requested by the candidate.

 

As you can imagine, this puts us in some awkward situations and I would like to know what are we legally obligated to do in the area of reference checking?

Sincerely,

Al

 

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.