Although there are differences in state
laws, in general the following is true with regard to
1. Even in states which give employees
access to their personnel files (most states do), written
reference checks need not be included.
Fair Credit Reporting ACT (FCRA) regards reference checks to
be Investigative Consumer Reports, and has notification
DiligencePartners requires a release from the individual being
checked as to the specific people who will be contacted,
and/or a general release authorizing the contact of anyone
regardless of whether specifically named or not.
3. With regard to the person providing
the reference information, almost all states protect that
individual from being sued if the information provided is
true, even if that information results in the candidate not
protect against negligent hiring claims, employers must
conduct thorough reference checks. A claim of negligent
hiring can result when an employer hires someone, that
individual subsequently takes some action which harms a third
party in some way, and it turns out that the individual had
engaged in such harmful behavior previously and the employer
had made no reasonable effort to uncover that fact before the
hiring decision. This is the reason that many employers
conduct criminal background checks before hiring decisions are
also is a newer concept called negligent referral.
Essentially this means that a prior employer may be liable if
inaccurately positive reference checks, or reference checks
which omit highly negative behavioral information, are
provided. The premise here is that employers have an
obligation to divulge anything about a prior employee which
could prevent harm from coming to others.