Since past performance is often the best predictor of future performance, the best way to verify an applicant’s background and job suitability is to conduct a thorough reference check.
Today, employers are hesitant to give information about current or previous employees for fear of being sued. Therefore, many employers only confirm dates of employment and positions held. However, North Dakota Century Code 34-02-18 grants immunity from civil liability to employers or their agents who provide truthful information regarding dates of employment, pay level, job description and duties, wage history, and job performance if the information is not considered confidential according to law or a nondisclosure agreement and is provided in good faith.
Employers are increasingly being held liable for negligent hiring (not properly investigating the background of individuals who may pose a risk of harm to others). The best defense against charges of negligent hiring is complete reference checks. By contacting any of the following, one can gain important information that will be helpful in making the selection decision:
- Previous supervisors, particularly those no longer with the former employer, are the most apt to give in-depth information about an applicant’s job performance.
- Former co-workers or subordinates.
- Customers, clients, or anyone else who has conducted business with the applicant. Personal references are probably the weakest source. Since the applicant personally selects the personal references, s/he will not select a reference who would give a poor recommendation. An employer, however, may gain some information from personal references.
For an applicant who is currently employed, ask him/her to provide you with a copy of his/her most recent performance evaluation.
In the case of an applicant who is working or has worked for another state agency, the personnel file is an open record and may be reviewed.
How to Check References
- Telephone versus Written
The most effective method for gathering reference information is the telephone. Even though many employers give limited information, it’s worth it to try to make a phone contact. Telephone reference checks make it possible for you to listen to the tone of voice and voice inflections and to encourage the reference to talk. It also allows for clarification of comments. If a reference responds, "You’ll be lucky to get him to work for you," you have the opportunity to probe for the real meaning of the statement; whereas, with a written reference, you could not probe for more information.
Obtaining written references is a time-consuming process. It could take a minimum of two weeks from the time you mail the request for information until you receive a response. Furthermore, written reference requests are often completed by the human resource or personnel office, even if directed to a specific supervisor or manager. Employers hesitate to provide written references because of the liability involved. Obtaining valuable information may be more likely with a telephone contact.
- Guidelines to Reference Checking
Notify the applicant:
- Inform the applicant that you will be conducting a reference check. The certification statement at the beginning of the online job application, which is electronically signed by the applicant, contains authorization to investigate statements on the application and its attachments and releases liability for those giving and receiving the information. If your agency uses a different application form that does not authorize investigation of statements made on the application and its attachments, obtain a background information release with the applicant’s signature. If the applicant objects or fails to give authorization, it is an item to note when making your selection decision.
- Make a full disclosure to applicants about the kinds of information you intend to gather, the purposes for which the information is requested, and the North Dakota Open Records Law, NDCC 44-04-18. SFN 51915, Information Release Authorization for Employment Consideration form (268kb pdf), was created to assist agency hiring authorities in obtaining authorization from applicants to gather information from reference checks or criminal background records checks. A sample of this form is included in the appendix to this chapter. It is recommended that this form be completed after a tentative selection or conditional offer of employment has been made, as the Bureau of Criminal Investigation (BCI) requires information to do a criminal background records check that should not be included in the selection process.
- Prior to checking an applicant's current employer, ask the applicant's permission, since job seeking can place one's current employment at risk. If the applicant objects to your contacting the current employer, contact other references first. When the applicant is in final consideration, notify the applicant that you would like to contact the current employer. If the applicant still objects to your contacting the current employer, ask for names of other individuals who can attest to the applicant’s work record. You may also ask the applicant for a copy of his/her most recent performance evaluation.
Preparing for the reference check:
- Identify the information you need to know about the applicants, based on the job’s requirements, and determine how you can best obtain it.
- Be sure you have a business-related reason for asking for and using the information. Ask a reference only questions that you can ask an applicant. State at the outset that you don't want any information that deals with disability, medical conditions, etc.
- In addition to verifying factual information, try to get a more complete picture of the applicant’s job performance and qualifications.
- Design or obtain a reference check form that asks the same questions of all reference contacts. A sample form is provided at the end of this Chapter.
- Scrutinize applications, resumes, and interview notes carefully for warning flags that indicate something needs to be verified.
- Begin with close-ended questions and questions that are easily answered (dates of employment, position title, etc.).
- When it appears the reference is willing to talk more freely, progress to open-ended, evaluative questions pertaining to performance.
- Finally, probe the reason for the worker’s leaving.
Conducting the phone reference check:
- Use the prepared reference check form to ensure that you obtain all the information required and ask the same questions of all contacts.
- Introduce yourself by stating your name, agency, and the purpose of your call. Describe the position you are filling.
- If an employer hesitates to provide information and if you have a signed release from the applicant, state that you have obtained a signed release from the applicant authorizing that information to be released and offer to fax or send them a copy.
- Try to check at least two former employers, including the applicant’s direct supervisor. A human resources department or higher-level manager can only speak to generalities about work, verify dates, position title, etc., while a direct supervisor can attest to job performance and qualifications.
- Evaluating References
Carefully assess comments made by former employers, especially negative information discovered in reference checking. It’s not uncommon for employers to let negative feelings show through if an employee resigned for a better position. Likewise, sometimes employees terminated for poor performance have worked out a deal with former employers to ensure a positive reference.
Be aware that if a background check turns up reports of an arrest or conviction record, financial or credit problems, or EEO suit, such information can only be used to reject the applicant if the employer can show some business necessity for disqualification.
Don’t necessarily rule out an applicant based on a single negative reference check. This justifies conducting more than one reference check to verify the information received.
Loss of one job does not necessarily mean that the applicant will do poorly in another or that the applicant possesses deficiencies in job skills or abilities. There may have been extenuating circumstances that contributed to a termination of employment - inappropriate job match, lack of funding, etc.
If a reference reports a personality conflict, don’t assume that it was the applicant’s personality that caused the conflict. Probe for more information.
Reference checking is just one of many factors to consider in making a final selection decision. While impression of a reference may be subjective, consensus of all references may be looked at as being objective.
- Checking Criminal Records
For positions where an employee comes into close, unsupervised contact with customers or clients, extra care in checking references and background is advisable. There are many cases of employers being held liable for not discovering past criminal records of employees that would have disqualified them as applicants.
The North Dakota Bureau of Criminal Investigation (BCI) will provide criminal history record information for a small fee. An SFN 51915, Information Release Authorization for Employment Consideration form (268kb pdf) is required. If BCI does not receive this form, they will notify the applicant that a criminal history record information check has been requested.
The report you receive from BCI will contain conviction information and information on reportable events such as arrests or grand jury indictments that occurred within the past year and if the information has not been sealed. Be aware that arrest and grand jury indictment information that appears on this report should not be used to automatically disqualify an applicant. Balance the conviction information you receive with the position for which you’re recruiting. For information on obtaining criminal history record information on an applicant, contact your human resource representative or the Bureau of Criminal Investigation.
- Providing References
Human Resource Management Services (HRMS) recommends that each agency determines who in the agency is responsible for providing employment references on current or former employees. HRMS recommends a centralized approach where one individual such as the human resource representative or another designee provide references based on employment information contained in the personnel files.
A significant advantage to a centralized approach of providing references is more uniformity and consistency in the information being released. When numerous individuals within an agency are providing references, varying types and amounts of information could potentially be provided.
Individuals providing employment references need to be aware of the legal implications associated with that responsibility. Avoiding potential liability for you and your employer is extremely important.
You, as a supervisor, will be contacted at some point to provide a reference on current or past employees. Do not provide references without clear authority from your supervisor or agency human resource representative to do so. If you are unsure about your authority to provide references, tell the caller that you will return his/her call shortly. You can then contact your immediate supervisor or human resource representative to find out the proper way to respond to the reference inquiry.
If you have been given authority to provide a verbal reference, here are some general guidelines to consider:
- Ask the prospective employer if they have a waiver or release document that releases current or former employers from liability for providing employment references. Ask that they fax a copy to you prior to giving them information.
- Disclose only job-related facts that can be verified by documentation you have in the personnel file.
- Characterize job skills or knowledge by whether the employee met or did not meet job performance expectations as documented on a performance evaluation or other written record.
- Refrain from discussing a current or former employee’s general character, personality, or attitude.
- Avoid discussing a current or former employee’s private life, including disabilities or medical conditions.
- Avoid misleading information.
- Suggest that an open records request be made to view the personnel file.
- Document all statements and information given to the prospective employer.