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What You Can -- and Cannot -- Ask a Reference When Hiring

On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP posted on Wednesday, July 6, 2022.

If you are looking to hire a new employee, you are probably knee deep in the recruitment process, posting job descriptions, fielding phone calls and reviewing dozens of applications daily. Once you’ve narrowed down your potential selections, you’ll need to take the next step in the vetting process, and that’s to check references.

Asking all the right questions during this reference check will ensure you are making the best decision possible.

But there are certain things you can and cannot ask a reference when calling them about a current or former employee of theirs. Any missteps can put you in legal hot water later on. It’s best to hire a business lawyer with experience in employment law matters to help you navigate this process.

What is a Reference Check?

This is the part of the hiring process whereby an employer reaches out to people who can talk about the candidate’s strengths and qualifications that have been listed on their resume. Usually, these contacts are previous employers, but they could also include university professors, colleagues and other people who are familiar with the applicant’s work and track record, points out Business News Daily.

Reference checks are designed to give the employer a better idea of the candidate’s professional and personal connections to fully understand the scope of their skills, qualifications and demeanor in the workplace. Such checks are important because anyone can look good on paper or ace an interview.

The real material comes out in the reference checks: how the candidate performed their duties, their ability to get along with others, their timely completion of work, or tendency to come in early or late to work. Asking the wrong questions, or failing to ask them in the proper way, when performing a reference check can come back to negatively impact you later.

It’s important, as a business owner to conduct reference checks on prospective employees in the proper and legal way. Here’s how you can prepare for the phone calls and know what to ask.

How to Conduct a Reference Check

Overall, your questions should focus on the candidate’s performance at their former place of employment, what it was like to work with them, and what it was like to manage them. Steer clear of personal questions. The purpose of a reference check is to paint a picture of the abilities of a potential hire so that you can gain a better understanding of how they would fit into your company culture.

This will provide insight into their abilities that you wouldn’t necessarily get from a traditional job interview. The purpose of the check is to:

• Confirm the information (both verbal and written) that the candidate provided to you.
• Find out more about the candidate’s strengths and skills from someone other than the potential hire.
• Gather information about job performance in previous roles to determine if they would be a successful fit at your company.

What to Ask

Here are some questions that you can and should ask during a reference check:

Step #3: Citizenship Interview and Test

• How do you know the candidate?
• What was the nature of their responsibilities?
• What caused the candidate’s employment to end?
• What were their job titles or roles, and how many months or years did they spend in each?
• Did they receive any promotions while in your employ?
• Does the candidate have the job skills required for this new position?
• Did the candidate earn any major accomplishments while working for you?
• Would you rehire this applicant if you could?
• Would you recommend this candidate for employment?
• What are the candidate’s greatest strengths? Weaknesses?
• Was the candidate a good communicator and listener?
• Do they work better alone or as part of a team?
• Is there anyone else you recommend that I should speak to about this candidate?

Remember, the questions you ask are designed to reiterate, confirm or deny the information you were given by the candidate himself or herself.

What NOT to Ask

Here are some questions you can’t and should not ask during a reference check. Don’t inquire about anything regarding:

• Race, religion, age, sexual orientation or gender: The ADEA, or Age Discrimination in Employment Act, prohibits discrimination based on age. Likewise, questions about race or nationality are not allowed per the Title VII of the Civil Rights Act.
• Disabilities or health: Disability discrimination is prohibited by the ADA, or Americans with Disabilities Act (ADA), and health-related information is protected by federal law.
• Criminal history: While you can run a separate criminal history on the candidate with their consent, you can’t ask direct questions about criminal history in a reference check.
• Credit and salary: Asking about credit history may look like you intend to discriminate the candidate based on financial status. Instead, run your own credit check through a reputable company.
• Marital status, family, children: Questions regarding family could be found to discriminate against females or minorities looking to begin a family or looking to relocate for any number of personal reasons.

A strong reference check can ensure you hire the right candidate but be sure to avoid questions that may open you up to legal consequences.

Contact Sayer Regan & Thayer

If you need a business lawyer to help navigate an employment case, whether as an employee or an employer, please contact us today to get your free, no-obligation consultation.

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.

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