Recent polls and research suggest that 50-80 percent of resumes submitted by job applicants contain false or inaccurate information about the applicants’ job history or qualifications. Employers who are not already conducting careful reference checks may be more inclined to do so when faced with such an alarming statistic. Checking references is a small step in the hiring process that can provide significant value to employers, helping them to make informed hiring decisions through examination of the information gathered.
The law does not specifically require an employer to check a candidate’s references, but doing so can help to avoid disruption to the dental practice. In addition, a bad hire who slips through the hiring process can potentially create legal liability for their employer in the form of lawsuits for negligent hiring, negligent retention or vicarious liability for employee misconduct. While no approach offers a 100 percent guarantee that these checks will protect the employer from lawsuits, employers are finding that their best defense is to conduct reference checks into a candidate’s job history to weed out potential trouble.
Some employers may be reluctant to provide references for fear that providing information can have legal consequences. They are increasingly wary of being specific during reference checks about past employees and their work histories. Employers should be aware that California Civ. Code section 47(c) provides protections to an employer when communicating truthful, accurate information about the job performance or qualifications of a current or former employee, based on credible information and without malice, upon the request of a prospective employer. That communication is afforded a “qualified privilege” (an immunity from lawsuit, usually a lawsuit for defamation, for acts committed in the performance of a legal or moral duty in providing a truthful and accurate reference) and may be kept confidential.
California law does place restrictions on the type of information gathered during the recruitment process, including restrictions on inquiring about prior salary (effective Jan. 1, 2018, employers may not ask about an applicant’s prior salary) and restrictions on obtaining criminal history information. Before checking a candidate’s references, the employer should obtain a signed waiver authorizing them to investigate all information submitted on a job application or resume. It is also important to use a California-specific application that includes, at minimum, a basic waiver that allows the employer to check past employment, personal references and education.
Before contacting references, employers should prepare a list of questions that relate directly to job performance. The Department of Fair Employment and Housing has a fact sheet that describes acceptable interview topics to help ensure the hiring process is nondiscriminatory. Some questions should be avoided, such as those related to protected medical leave, health conditions, disabilities, other protected class information or other non-job related information.
The employer should then identify factors that are most critical to the success of the job, such as chairside manner, personal communication, flexibility when under pressure, professionalism and accuracy, and prepare questions to target these areas. Questions may also inquire about:
It may be effective to ask a reference to rate the candidate on job-related factors on a scale from 1 to 10 and to elaborate on the basis of the rating.
The next step is to verify that the information on the application and resume is accurate, paying attention to dates of employment and noting gaps in employment history. The employer should carefully discuss any discrepancies with the applicant.
Employers should be cautious of references that seem overly positive. If the feedback you receive sounds a little too good to be true, it probably is. Honest references will candidly share the strengths and weaknesses of their former employee or colleague, especially if the right questions are asked. If the reference can’t identify a single task or area where the candidate can do better, they may not be giving you a complete picture.
Information gathered through reference checks should be kept confidential and discussed only with those who have a business need to know.
Finally, each reference check should be documented. If a person contacted for a reference does not provide any information beyond dates or employment or title, document the information received and that the reference provided no additional information. If possible, check additional references.
Despite the work involved, don’t shy away from conducting a reference check with a former employer of someone you are preparing to hire. The more time spent vetting a candidate up front, the better the chances of making a great hire — or avoiding a bad one.
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