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5 Tips to Keep Employee Reference Checks Legal

By Andrew Lu | Last updated on

Employee reference checks are invaluable to employers, as you get to learn something about potential candidates from the people who've actually worked with them.

However, as many employers have already discovered, employee reference checks can also be a source of liability. So even though online information has become more accessible than ever, it pays to be careful about where you look for information and which questions you ask.

Here are five tips for conducting employee reference checks and keeping them legal:

  1. Limit the scope of your inquiry. The best advice for an employer running an employee background check may be to keep the investigation reasonable. This means that you only dig around for relevant information. By combing around for any and all information and requiring physical checks of everyone, you may be setting yourself up for a discrimination or invasion of privacy lawsuit.

  2. Keep it business-related. Consider the position you are hiring for, and look for information relevant to that position. For example, you may need to dig into the criminal and driving records of a school bus driver, but these may not be necessary for an office janitor.

  3. Receive consent. If you get the applicant's consent before accessing potentially sensitive information, you better insulate yourself from liability. Additionally, some checks like credit checks expressly require you to get the applicant's consent.

  4. Know which records you can consider. Some records that are in the public domain may be freely viewed. But as mentioned above, other records like credit reports, drug tests, and driving records, may require the consent of the applicant.

  5. Know which records you cannot consider. You may not be able to access some records completely. For example, there may be issues with accessing criminal records, workers' compensation information, military service, and medical records.

When you are developing an employee reference check policy, it is a good idea to consult with an attorney. An experienced attorney can help work out a policy specific for your company including which records you may seek, which waivers are appropriate, and the proper legal procedures for gathering references.

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