Keep In Mind Ramifications When Checking Applicants’ References

Employee Rights Attorney

Mission Viejo, California

Originally Published in The Los Angeles Times, August 12, 2001

Q: “What can a prospective employer legally ask a previous employer when checking references? And what information can the previous employer legally volunteer?”

A: “Employers should not ask questions that might be considered discriminatory in nature or seek private background information prohibited by law.

“The federal Equal Employment Opportunity Commission issues guidelines listing proper and improper questions for employer to ask a prospective employee.

“It would be inappropriate to ask for an applicant’s date of birth, citizenship status, club memberships or medical condition, for example. But it would be acceptable to ask an applicant to furnish proof that he or she meets legal age requirements, to submit verification of the legal right to work in the United States or to reveal membership in union, professional or trade organizations (unless this indicates race, religion, ancestry, sex or age). It also would be appropriate to ask whether the applicant is able to perform the essential elements of the job.

“Although there is not as much liability if the employer offers the candidate a job, the employer could be held liable later if the employee is demoted, passed over for a promotion or terminated.

“Employers should not assume that a prospective employer won’t provide the candidate with details of a reference check. They often do.

“Theoretically, the former employer is protected if it tells the truth. There can be disagreements over what constitutes a truthful statement, however. As a result, the safest strategy may be for a previous employer to confirm only a former employee’s job title and dates of employment.

“The Legislature thought misrepresentations to prospective employers so reprehensible that it added criminal penalties and allowed victims to recover triple damages.

“A former employer also can be held liable for positive references that prove to be misleading.

“Sometimes it’s tough to get it right no matter what you do.”