When contacting a job applicant’s references, it’s important for employers to know what they can legally ask. There are certain questions that could violate labor laws or unfairly affect the applicant’s chances of getting the job. At the same time, employers have a right to thoroughly vet candidates and make sure they are a good fit for the role.
Reference checks require treading carefully between these two goals. With some general guidelines, it’s possible to gain the necessary insight without overstepping legal boundaries.
What is a reference check?
A reference check is when an employer contacts a job applicant’s references to learn more about their qualifications, work history, and overall fit for the role. Reference checks are a standard part of the hiring process for most companies.
Checking references allows potential employers to:
- Verify details on the applicant’s resume, such as employment dates, job titles, and responsibilities.
- Gain insight into the applicant’s strengths, weaknesses, work style, and personality.
- Ask follow-up questions about any areas of concern.
- Get a third-party perspective beyond what was covered in the interview.
Speaking with references is the closest many employers can get to observing how an applicant performs on the job. It provides crucial information to ensure a candidate is right for the role before making a job offer.
Common Types of References
There are a few main categories of professional references that employers may contact:
- Employment References: Past managers, direct supervisors, coworkers, clients, or subordinates can all provide valuable insights into an applicant’s work ethic, skills, and professionalism in a prior position.
- Academic References: For recent graduates or jobs requiring specialized knowledge, professors or advisors can discuss the applicant’s academic performance, coursework, research projects, and educational abilities.
- Personal References: Sometimes applicants provide references from volunteer work, groups or organizations they are involved in, coaches, or other non-employment connections who can speak to their character and relevant soft skills.
What Can Legally Be Asked on a Reference Check?
While reference checks are extremely helpful for employers, there are certain questions that should be avoided. Below are guidelines on what can and cannot legally be asked of an applicant’s references:
Legally Permissible Questions
- Confirmation of the applicant’s employment, job title, duties, salary, work schedule, etc.
- “Would you rehire this individual?”
- Reason for the applicant leaving the prior position.
- The applicant’s strengths, weaknesses, and qualifications in relation to the job requirements.
- Examples of the applicant’s job performance, work relationships, leadership skills, reliability, etc.
- Appropriate follow-up questions to clarify any concerns.
As long as the focus is kept on job-related specifics, most topics are fair game during a reference check. Open-ended questions allow references to provide their honest impressions and feedback that will help determine if the applicant is the right fit.
Illegal or Discriminatory Questions
On the other hand, certain questions could violate equal employment opportunity laws or unfairly damage the applicant’s chances of being hired. Illegal questions typically refer to protected characteristics, including:
- Age
- Race, color, or ethnicity
- Gender or sex
- Religion
- National origin
- Disability status
- Marital status
- Sexual orientation
Examples of inappropriate questions would be asking about an applicant’s age, whether they are married or have kids, their political views, health conditions, or other non-job-related topics.
Even questions that seem innocent could come across as discriminatory, such as “Do you think the applicant would fit in well with the team?” Instead, it’s safest to keep the focus directly on work performance and qualifications.
Best Practices for Contacting References
Here are some best practices employers should keep in mind when reaching out to an applicant’s references:
Get Consent from the Applicant
Before contacting references, ask the applicant for consent and notify them of who will be contacted. This ensures the applicant can confidentially alert references that someone will be reaching out.
Call the References
Whenever possible, call references directly rather than only emailing. This allows for an actual conversation and the ability to ask follow-up questions.
Identify Yourself and the Company
Let the reference know who you are, what company you are calling from, and what role the applicant is being considered for.
| Reference Type | Suggested Questions |
|---|---|
| Employment Reference | What were the applicant’s job responsibilities? How would you describe their work performance and contributions to the team? What are their greatest strengths? In which areas could they improve? Would you rehire this applicant? |
| Academic Reference | Which courses did the applicant take with you? How did they perform academically? Were they an engaged and active participant in class? What projects did they work on? What skills and knowledge did they gain? How well did they collaborate with peers? |
| Personal Reference | How long have you known the applicant and in what capacity? What qualities come to mind when you think of this individual? Have you seen examples of their integrity or responsibility? Do you have any concerns about their ability to succeed in this role? |
Have a List of Questions Ready
Come prepared with a list of questions tailored to what you hope to learn about the applicant. See the table for examples of appropriate questions based on the type of reference.
Take Detailed Notes
Keep notes on the conversation to reference later when making a hiring decision. Notes should focus on job-related details rather than personal characteristics.
Maintain Confidentiality
Keep the conversation confidential and do not disclose details to the applicant or others involved in the hiring process.
Follow Up Afterward
Send a thank you email to show your appreciation for the reference’s time and input.
What Can Be Disclosed in a Reference Check?
Many applicants wonder – what exactly can a reference say about me? There are certain legal limits on what previous employers can disclose. Here is what references can and can’t reveal:
What References Can Legally Disclose
- Confirmation of the applicant’s prior job title, responsibilities, salary, work schedule, etc.
- General information about the applicant’s qualifications, skills, and work performance.
- Whether the applicant would be rehired if the opportunity arose.
- Factual details about any disciplinary issues or terminations.
As long as the reference provides objective facts relating to the applicant’s employment history and keep opinions rooted in job performance, it is usually legally permissible to share.
What References Cannot Disclose
- Any information that violates equal opportunity laws, such as the applicant’s race, religion, age, health, marital status, sexual orientation, etc.
- Subjective personal impressions that cannot be backed up with examples or facts.
- Outright falsehoods or misleading statements.
- Details about lawsuits, criminal records, workers’ compensation, or other confidential matters.
References should avoid sharing unsubstantiated subjective opinions, confidential information, and protected characteristics irrelevant to job performance.
When Can a Bad Reference Be Grounds for Legal Action?
While employers need candid insight from references, there are times when a negative reference could cross legal boundaries. Here are some examples where an applicant may have grounds to take legal action against a reference:
- Discrimination – A reference gives a bad review based on the applicant’s race, gender, age or other protected characteristics.
- Defamation – The reference knowingly makes false statements about the applicant’s conduct, character or job performance.
- Retaliation – The reference gives an unfairly negative review because of a personal conflict or desire for revenge against the applicant.
- Disclosure of Confidential Information – The reference reveals private information about disciplinary issues, health status, lawsuits or other confidential matters.
These types of inappropriate disclosures during a reference check could potentially result in a lawsuit if significant damage is done to the applicant’s reputation or ability to secure employment.
Steps to Take if a Reference Was Illegally Discriminatory
If an applicant believes a reference illegally discriminated against them, here are some steps to take:
- Get written statements from anyone who heard the call or can corroborate the reference’s inappropriate or biased comments.
- Note specific quotes, statements, or questions asked that were discriminatory.
- Consult with an employment lawyer about options for potential legal action.
- File a complaint through the U.S. Equal Employment Opportunity Commission.
- Notify the potential employer about the inappropriate nature of the reference.
- Send a cease and desist letter to the former employer about the illegal reference.
- Submit rebuttal letters from other references to counter the unfair portrayal.
Conclusion
Checking candidate references is a vital part of the hiring process, but must be handled carefully and legally. By focusing questions on job qualifications, skills and factual employment details, recruiters can gain the necessary insight without risk of discrimination. With a combination of common sense, basic courtesy and compliance with labor laws, reference checks can achieve their goals without causing issues for either party.