Human Resource Blog

Risks of Negligent Hiring

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I am tired of calling references and not getting call backs. Then I will call again and sometimes I feel like my whole day is about leaving messages and waiting for call backs for all of these job candidates. However, I understand that our company could get into legal trouble if I do not do a thorough reference check. Is that true?

Absolutely. Understandably, it can be very tiring to have to call references, leave messages and wait for call backs. Sometimes, waiting on those references to call you back and literally hold up the entire hiring process, which is not a very good situation for you or your job candidate to be in. However, if you do not conduct a complete reference check, then you could be held liable for what is called negligent hiring.

Negligent hiring occurs when a company, such as your company, does not perform a thorough reference check. This is a sincere concern for many courts and individuals because it has happened when an employer fails to do a complete check and ends up hiring an employee that is a threat to others within the company. As such, performing the reference check not only protects your other employees, but it helps you to understand more about the job candidate that you are considering.

However, you also have to keep in mind that you may not ask for certain information during your reference check. For example, you may not ask about the mental or physical health of a candidate, according to the privacy policies of the Americans with Disabilities Act, which is a federal Act that applies to all states in the U.S. Likewise, you cannot ask about age, race, national origin or related characteristics according to Title VII, which is also a federal document that protects employees from discrimination.

You should use the following check list to stay within legal guidelines when conducting your reference checks:

Make sure that the questions you ask are related to skills, performance, attitude, attendance and the ability of the candidate to perform group work.

Make sure that your references understand that the information they provide is confidential and that you are interested only in information that relates to the job performance of a candidate.

Any information that you receive about a candidate should be applied across the board for all candidates. For example, if one candidate is eliminated simply because he or she did not complete his or her goals, then all candidates with the similar comment should be removed from consideration.

Make sure that you document all reference checks in writing. You may need this information if you ever have to defend the hiring decision that your company makes.