Adams & Garth Blog

By Christian Howell, of Adams & Garth, Staffing and Executive Search
Article originally published in Crossroads Business Magazine.

Reference checks are an important and valuable aspect of pre-employment screening, but there are misconceptions about what can and cannot be discussed. The laws on reference checks vary from state to state, however we have some general guidelines to follow. The key is that reference questions should be limited to relevant job-related information.  These questions should be designed to gain information that allows the prospective employer to evaluate the candidate’s ability to perform the job and work well with co-workers. You should avoid any questions that may focus on age, sex, religion, national origin or disability. These personal characteristics cannot be used for hiring decisions as they are not job-related and may lead to charges of discrimination. A good test is: Would I directly ask the candidate the same question?  If the answer is no, then you should not ask the reference source for that information.

The challenge of reference checks is that useful information may be difficult to get. Some employers will only disclose limited information such as dates of employment, positions held and perhaps salary information. These employers are concerned that former employees may file defamation claims if they are unsatisfied with the reference they receive.  This limited reference is really just employment verification and while important, it is not as valuable as a true reference check.

The goal of a reference check should be to obtain qualitative information about the person’s past performance, improvements needed, and recommendation for rehire. A potential solution to the litigation concern starts by getting a signed document from the prospective employee authorizing the job reference. Presenting this document does not guarantee that the former employer will provide such a reference, but it may alleviate some of their legal concerns.

In Virginia, employers providing references are protected by statutory immunity. The guidance about what can and cannot be asked when conducting a reference check is limited, but as long as the information given is true and is not intended to harm the employee or prevent them from obtaining employment, there will be no problem. From Va. Code § 8.01-46.1: “As long as the employer providing the reference is acting in good faith, it is immune to civil liability. Any employer who, upon request by a person’s prospective or current employer, furnishes information about that person’s professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith.”

Exercising due diligence to get qualified, revealing, and useful reference information on potential new hires can be overwhelming and time consuming, but it is worth the effort and may prevent a costly hiring mistake.

Christian Howell is Business Development Manager for Adams & Garth, Staffing and Executive Search.  He holds CSP and TSC certifications from the American Staffing Association and graduated from The University of Virginia. Adams & Garth is a member of the Greater Augusta Chamber of Commerce and has offices in Verona, Harrisonburg, Charlottesville, Lynchburg, Culpeper and Richmond. Christian can be contacted at chowell@adamsandgarth.com or 434-974-7878.  The company website is www.adamsandgarth.com.