Legal don’ts for reference checks

By Jennifer Meacham Dirks

Special to the VBJ

So you now know what questions you, as a prospective employer, can ask past employers to get the dirt on job applicants (see Jan. 18’s “Ask and you shall retrieve”). But let’s not forget the other side of the story.

Each of the half-dozen attorneys questioned for the story gave basically the same answer: “Let’s start with what you can’t ask, because those are easier,” said Peter Felf, a solo practitioner in downtown Vancouver who has represented more than 100 employees in the courts.

            So what are those don’t-ask questions? First, any questions on the applicant’s race, sex, religion, disability, marital status or national origin. Second, any questions on things protected by public policy such as union activities, asking for over-time pay, and filing OSHA reports or worker’s comp claims.

            “If the prospective employer asks about that information, and doesn’t hire [the applicant] for that, that could create problems for both employers,” Felf said.

            Third, any questions that might show a bias or preference related to any of those factors. Felf gives this example: “If you ask, ‘Did this person have problems with childcare,’ for instance, that tends to be a form of sex discrimination.”

            Examples also include asking whether the person was married or about their home life. Even asking about physical capacities to do the job “needs to be done very carefully, in a way that doesn’t indicate any discrimination,” Felf said.

            His solution? “I think it would be safe to ask how the prospective employee performed at the other job. That’s a better way to ask that.”

            And stay away from asking about jail time, said Vancouver attorney Joni Kerr, a sole practitioner representing school districts statewide. In her experience, “generally, it’s problematic to ask about arrests.” Leave that up to the employee-approved background/credit check.

            “What I tell employers,” said Don Grant, attorney at Vancouver’s Grant & Elcock, “is that they are fairly free to ask about anything, from attendance record (watch questions about disabilities though), discipline history, ability to do their job, and to verify skills on the job application.

“Anything that’s job related, you can ask about,” Grant said. “But anything that’s not, you can’t. You can’t ask ‘Are they married?’ or ‘Did they take time off for their kids?’ But you could certainly ask about general attendance.”

Other tricks of the trade

“If you really want to get at what’s out there,” said employment attorney Linda Frischmeyer, “require your applicant to sign an authorization to release personnel file contents, and a release of any potential claims against the former employer for providing that information.”

            Frischmeyer practices at Vancouver’s Landerholm Law Firm, and is a frequent speaker on the subject. Personnel file releases — the “key strategy” in Frishmeyer’s estimation — helps keep former employers from crossing that fine line while also giving potential employers “the most information out there,” she said.

            If nothing else, it’s a wise bet to make finalists sign a comprehensive waiver. “Many employers now are requiring candidates to sign a consent for release of information from the former employer,” said Don Grant, attorney at Vancouver’s Grant & Elcock.

            Waivers give an employer permission to contact references and anyone else who might be familiar with the applicant's past job performance.

            “If [a candidate] consents, then you can’t be sued later for something [the candidate] consented you to do,” Grant said. “The only exception would be if you start asking applicants to give permission for restricted areas.” Restricted areas are questions on (or showing a bias toward) race, sex, religion, disability or marital status.

            Once you have the signed release, let references know that you have the employee's consent to obtain job-related information. State that you need this information in order to make a fair hiring decision (which actually protects both of you).

“Stress confidentiality to the former employer,” said corporate recruiter Nicole Moss.

And for employers saying goodbye to employees that may later ask for references, here’s a strategy to safeguard you as well: Require a leaving employee to give you written permission to respond to a reference check. Include this in a standard release agreement, signed at the end of employment.

An attorney can draft all release forms. Some forms can be purchased at business supply stores.