Bent Ericksen and Tim Twigg
After four months, a new assistant was found to be less skilled than what was represented in her resume and interview. Her employment was terminated, and she sued for unfair dismissal, claiming discrimination. When her references were checked prior to her hiring, both previous employers would only verify that she had worked there and would not say anything else. When asked if they would rehire her, they said that they could not answer that either.
Reference-checking is a critical step in the hiring process. It helps avoid hiring mistakes, potential employee embezzlement, or charges of "negligent hiring." In this case, it was subsequently learned that this employee had sued two prior employers, each of whom settled to avoid going to court.
Considerations
First and foremost, an employer should not hire a prospective employee if adequate reference information is not available. Many doctors don't even check references, contending that they don't have the time or that previous employers wouldn't provide "real" information anyway. If employers do not receive real information about an applicant's work performance, it enables those employees to move from employer to employer with sometimes disastrous consequences.
Arthur A. Witkin, chief psychologist, Personnel Sciences Center, in New York says, "The single most important indicator of how an employee will perform in the future appears to be how he/she has performed in the past. Employees with a history of success tend to continue their successful performance. The others, despite their best intentions, rarely are able to turn over a new leaf."
To avoid claims of negligent hiring, employers must make a good-faith effort to get truthful information from prior employers. With good reference information, you can screen out unsuitable candidates and potentially incompetent, unsafe, or violent employees.
Solutions
Here are three key components that support more meaningful reference checking.
1) Make sure that your job application includes appropriate language that provides authorization and a waiver for checking references.
2) Utilize a "Reference Request Form" as part of your interviewing and evaluating process. This form extends permission and a waiver for the potential employee to sign allowing you to contact previous employers.The form should contain a "fill-in" format that makes reference-checking easy and safe to complete.
3) Incorporate an "Authorization To Give References" form as part of your ending-of-employment process. This form would provide you with permission and a waiver to provide reference information about this employee upon request. If a soon-to-be former employee refuses to sign this form, you should simply state, "He/she refused to sign our reference form" when asked for references.
Even with a waiver, care still must be taken regarding the type and treatment of information received and given. The good news is that currently 37 states have enacted legislation under which employers are "conditionally" immune from civil liability for providing information regarding a former employee's education, training, experience, qualifications, and job performance.
To help ensure that reference information is handled properly, follow these steps:
1) The information exchanged should be between authorized sources. Make sure the person who requests the information is "bona fide."
2) The information provided must be factual.
3) Ensure the information received is treated confidentially. Do not discuss details with staff.
4) Ensure you have the applicant's permission and a waiver of legal action in writing.
5) Ensure the information is given without malice or ill will.
6) Ask and answer only questions related to the job.
By following these guidelines, you can give and receive employment information about a prior or prospective employee without exposing yourself to potential litigation. Contact our office to obtain information about the forms mentioned in this case study.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company's quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
