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The Fordyce Letter

Straight Talk for the Recruiting Profession


Articles tagged 'referencecheck'

Jeff's On Call!

Jeff’s On Call!: Background/Reference Checks

by on Aug. 8, 2011


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This week’s inquiry comes from Christine Hoffman-Hicks:

Hi Jeff,

I am a regular subscriber and reader of your insightful and informative column.  My question pertains to background checks for permanent (direct hire) placements: If our client is performing a background check on our candidate, should we still run of our own as well or is our firm protected from liability if something were to happen with this candidate down the road?  Our practice has been to always perform a background check if our client does not, but if they do we’ve deemed that acceptable. I can’t help but wonder if something were to happen, could we be held liable?

Thank you!

Christine

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Relationships

Recruiter Chronicles: Story of the Despicable Million-dollar Producer

by on Jun. 28, 2011


evil by L. Marie

“She said what!?” I heard the question fly from the other side of the room punctuated with disgust. Each one of my teammates’ ears were now perked with anticipation to hear what “she” said. We waited patiently for a minute, and up from her cube popped my teammate Chris. She exclaimed, holding her head in her hands and looking like she was in great pain, “I can’t believe it!”

“What?” about three of us asked at the same time.

“She did it again,” Chris said with a tone of resigned disbelief in her voice.

“Who?” we asked.

“You know who,” Chris answered. At that moment we all knew. “You-know-who” is a bit of a nemesis of ours. She is a million-dollar producer that none of us know personally, but deal with on a constant basis. If you just looked at her body of work in terms of numbers you would be infinitely impressed. She is known to be a consistent big biller, with the best contacts, and amazing work effort. Unfortunately, she also known to be somewhat morally and ethically challenged within the confines of recruitment.

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Uncategorized

The Recruiter’s Liability for Wrongful Hiring: Injury BY the Candidate, Part 1

by on Apr. 28, 2010


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On Monday and Tuesday we covered the known area of liability for injury to the candidate. Now we start another two-day series that goes into the unknown territory of liability when he injures someone else.

1. Traditional Indirect Liability

One of the most fundamental principles of law is the Latin phrase respondeat superior.

As it has developed, it means “The employer is responsible for the wrongs of the employee on the job.” No corporate defense lawyer argues about that — only about whether the “wrong” occurred “within the course and scope of employment.”

There is no limit to the number of “course and scope” fact patterns that can arise.

Was the act “authorized?” Was it “ratified” (impliedly accepted)? Was it “reasonable?” Was it for the “employer’s benefit?” Was it done during “working hours?”

The traditional “employment agency” had no difficulty here. If the fee was paid by the “applicant,” it was no great legal leap to show it was acting on his behalf. Even if the fee was paid by the employer, the alignment was with the applicant. But “clients” don’t see “applicants” — they see “candidates.” They’re judging a beauty contest, and you’re the modeling agency.

The alignment — your liability — runs to the employer.

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Uncategorized

The Recruiter’s Liability for Wrongful Hiring: Injury to the Candidate, Part 1

by on Apr. 26, 2010


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When it comes to wrongful hiring by employers, you can not afford to be anything but concerned.

This is the hottest area of the law, and only luck has kept our industry away from the flame. That’s right, luck.

The major cases have involved candidates hired through other sources. The employers had no recruiter to skewer.

We don’t call them “contingency-fee, no-strings employers,” we call them “clients.” Sometimes “exclusive clients,” even “retained clients.” And we call ourselves “consultants.”

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Jeff's On Call!

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

by on Jul. 17, 2009


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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.

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.

***

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.

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