the average
telephone reference call will not yield much usable information –
employers are concerned about being sued for giving unfavorable references
case in
point: Frank
B. Hall Company v. Buck,
678 S.W.2d 612 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd
n.r.e.), cert. denied, 472 U.S. 1009, 105 S. Ct. 2704 (1985)-
terminated employee suspected former employer was bad-mouthing him
behind the scenes - ex-employee hired private investigator to pose as
a prospective new employer and call the former employer for a
reference - investigator tape-recorded the employer stating
scurrilous and unprovable allegations about the ex-employee's
character and honesty - jury decided that was defamation and awarded
almost $2,000,000 in total damages to the plaintiff
all
applicants should sign a waiver and release of liability form clearly
authorizing prior employers to release any requested information to
your company and relieving both the prior employers and your company
of all liability in connection with the release and use of the
information - such a form should be developed in consultation with an
employment law attorney
whatever
information an employer releases in connection with a job reference
should be factual, in good faith, and non-inflammatory!
recent
Texas law (H.B. 341, 76th Legislature) gives employers important
protections against defamation lawsuits based upon job references, as
long as the employer does not knowingly report false information;
still, employers should try to report only what can be documented
employers
have the right to do criminal background checks themselves, but most
employers hire a service to do that – be careful, since the Fair
Credit Reporting Act requires an employer to get written
authorization from an applicant to do a credit or background check if
an outside agency will be used – in addition, if the applicant
is turned down, the employer must tell the applicant why and let them
know the name and address of the service that furnished the information
unless a
law requires such a question, do not ask about arrests, since the
EEOC and the courts consider that to have a disparate impact on
minorities – a company can ask about convictions and pleas of
guilty or no contest – if an EEOC claim is filed, the employer
must be prepared to show how the criminal record was relevant to the
job in question (the so-called "job relatedness" inquiry)
in Texas,
do not ask only about convictions – under the law of deferred
adjudication, if the person given such a sentence satisfies the terms
of probation, no final conviction is entered on their record, and the
person can legally claim never to have been "convicted" of
that offense – however, they cannot claim never to have pled
guilty or no contest to the charge (such a plea is necessary in order
to qualify for deferred adjudication), so ask about convictions and
guilty or no contest pleas – see discussion directly above about job-relatedness
of an offense
an
employer may require an applicant to be responsible for submission of
official records, transcripts, certificates, and licenses
very important: in order to position your company as well as possible against potential "negligent hiring" claims, document your efforts to verify the work history and other background information given by the applicant
