When Kobe Bryant’s helicopter tragically crashed on January 26, 2020, it became clear that someone had not been conducting productive reference checks. The helicopter that led Kobe, his daughter Gianna, and several other friends to lose their lives that foggy morning was operated by a company with a poor safety record. Sadly, within the past two years, this company had been responsible for several deaths and multiple passenger injuries. According to NBC, the company was not licensed to fly in bad weather and the helicopter was not equipped with TAWS (Terrain Awareness System).
As America grieves over these untimely deaths, we can learn a lesson that applies to every candidate search. While your hiring decision is rarely a life-or-death situation, conducting productive reference checks is imperative to avoid a potential problem later on. What a reference check informs you about a candidate’s previous behavior can help you decide whether this person is a good hire or not. And it seems like it shouldn’t be too hard. You call a candidate’s previous employer, chat about what the person was like as an employee, and thank the reference for his or her time. But conducting productive reference checks isn’t as easy as you might think.
Perhaps you’ve had the experience of being stonewalled by a reference when you called to check on a candidate. Or maybe you’re the HR gatekeeper in your company and you’ve been trained to stonewall reference checkers yourself! Why are former employers afraid to tell the truth about a previous employee? It’s because of a misconception, says Optimum Employment Lawyers.
“Many California employees don’t realize that a communication between a former and prospective employer is privileged. There is a common misconception that former employers cannot say anything about the performance of an employee to a prospective employer. Employers do this to limit their liability for a defamation lawsuit by the employee. In California, however, employers are specifically authorized to state whether or not they would rehire the employee.“
If you’re a former employer who is asked to give a reference, this is great news. A privileged statement means it cannot be labeled as defamatory since it is not admissible legally. Protected by privilege, you can be honest–to a point, anyway. The law goes on to say you cannot make malicious or false statements, contact a new or prospective employer, or make statements about protected activities. This means your answers should be relevant to the matters being discussed. Don’t pass on mere rumors. Keep your statements evidence-based. And don’t volunteer any information that would be constitutionally protected, such as a candidate’s political stance or involvements when off the clock.
“In failing to give a truthful reference, we have created a system where alleged harassers (and other terminated employees) get to move on and become someone else’s (client’s) problem,” says Fox Rothschild Attorneys at Law. But as a reference giver, you can speak the truth and be protected by privilege. A new California law also “protects employers from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim.”
If you’re like most employers, you have a real job. Jumping into the hiring process was a real distraction from your regular work. Once you’ve found the candidate you think you want to hire, it’s easy to think you might not need to do a reference check. Plus, you might wonder what questions to ask when conducting productive reference checks.
We have a few favorites. Our wise friend Mike Sackett likes to ask, “How did you manage this person to get the best results from him or her? And what, if anything, should I avoid?” Our CEO, Scott Kuethen, typically concludes his reference check calls with the question, “If you could give (the candidate) one gift that would help him further his career, what would that be?” Positive, open-ended questions such as these help reference checkers feel that you are on the candidate’s side and frees them to be truthful and open about their experience.
But before you get there, you need to lay some groundwork. To learn more about conducting productive reference checks, read Reference Checks: Digging for the Truth. It contains a full sample reference call with step-by-step instructions and questions. Reinforced by knowing what to ask, you’ll find that conducting productive reference checks can be a valuable part of your hiring process.