The national statistics suggest that employers are hiring once again. Local businesses indicate the pool of qualified candidates is dwindling. It is getting tougher to find and retain suitable candidates for a number of available positions.
With a smaller pool of qualified candidates, many employers are tempted to hire quickly and to forego conducting a reference check, particularly for entry to mid level positions. There are a multitude of reasons (excuses?) given for not conducting reference checks.
Some employers feel it is too time consuming (Fact: The turnaround time can be accomplished in 24 hours or less).
Some employers believe it is too expensive (Fact: Depending on the employer-the costs can range from free to only $25).
Some employers do not believe they can obtain anything but dates of hire, salary verification and job title. (Fact: Washington law provides qualified immunity, meaning the employer is shielded from potential liability, when an employer response to a background check or reference inquiry.)
In Washington, employers are shielded from liability when they provide references which can include such information as :
- The employee’s ability to perform the job;
- The employee’s diligence, skill, or reliability in performing job duties; and
- Any wrongful or illegal acts an employee related to the job.
As long as the employer acts in good faith when providing this information and keeps a written record of all references provided for at least two years, the employer is shielded from liability from a former employee for giving a “bad” reference.
Additionally, background checks are mandatory for some employers, i.e., when hiring or using volunteers who may have access to minor children (under the age of 16); or volunteers or employees dealing with developmentally disabled individuals or with financially vulnerable adults. See RCW 43.43.830-.834.
Over the years, I have worked with many employers who decided not to conduct reference checks and ended up hiring an individual who they would not have or should not have hired if they had taken the time to conduct a thorough reference/background check.
Reference checks are a valuable tool to help business make good hiring decisions.
On one hand, employers can be held liable, in certain circumstances, for negligent hiring and/or negligent retention. Reference and background checks are a way to avoid this liability.
Background checks are also useful to help protect from direct losses (i.e, employee theft).
They also can reveal the applicant’s skill level, experience and personality, and can alert businesses to potential problems.
From a practical standpoint, an employer should talk to the employee’s direct supervisor, or if that is not allowed, then look at the possibility of connecting with customers, vendors, or others, who are familiar with the applicants work. You can also obtain a release from the applicant to share with reluctant former employers. A properly crafted release should allow you to talk candidly with a former employer about a particular applicant.
Reference checking is an important step and tool in the hiring process. As the job market tightens, many employers will be competing with a currently dwindling pool of qualified or suitable candidates. To help find and hire the right individual, employers should routinely thoroughly check an applicant’s references.
Gil Sparks is Of-Counsel for Ogden Murphy Wallace, PLLC, and has over 26 years representing employers on employment and labor law matters and has over 16 years of senior human resources experience.