?Past is often prologue, to paraphrase Shakespeare, so employers should verify the past employment of those they’re interested in hiring, particularly since organizations might be liable if they hire someone who later harms someone else, according to Lester Rosen, an attorney and CEO of Employment Screening Resources in Novato, Calif. On June 13, he walked attendees of the SHRM Annual Conference & Expo 2023 in Las Vegas through the process of past employment verification.
This process may seem like an empty exercise because former employers usually only tell prospective employers the start date, end date and job title of the individual, but Rosen said it should be done anyway as part of due diligence in the hiring process. He also recommended ways to try to squeeze out a little more information than is typically given—to wind up, in other words, with more of a reference check than an employment verification.
“Don’t start with the hard stuff,” Rosen said. Instead, ask for the start date, end date and job title, then ask what the job entailed and if the candidate was able to do that. Be sure to document that the prospective employer made these good-faith efforts to check on the applicant’s work history.
Who Should Verify Past Jobs?
Rosen said past job verification is typically done by someone in one of three different roles:
- The hiring manager. The advantage of the hiring manager verifying past employment is that they know the position that is being filled. But it’s hard to train managers not to ask illegal questions. And often, they’ll conduct only one interview and think that’s all they need to do—”one and done,” Rosen remarked.
- HR. The advantage of HR verifying past employment is that the person likely will do a thorough job, but the disadvantage is HR doesn’t know the position as well as the hiring manager, he said.
- A background-checking firm. This may just be a clerical person running through a checklist, and the process could result in a recommendation of who not to hire rather than who to hire, Rosen said.
Responding to Past Employment Verification Requests
Rosen explained that he wasn’t recommending that employers share more than the start date, end date and job title if someone contacts them for employment verification. To tell more risks getting sued for defamation, he said.
He cited one instance where a medical group’s employees gave a glowing review of a former hospital employee who they “knew was a disaster waiting to happen with a drug problem.” A court later ruled that the medical group should not have misrepresented the employee’s record.
When it comes to responding to past employment verification requests, “legally, silence is golden,” Rosen said.
He recommended employers use the following strategies if asked for a reference:
- Have a written policy, and be consistent.
- Keep all information with a central source.
- Clearly document who is asking and what information is given and by whom.
- Get written releases from employees, but be aware this won’t protect employers from defamation claims if they’re brought.
- If there is a lawsuit, give only basic information to inquiring parties to avoid claims of retaliation.
Occasionally, an employer will give a negative reference for someone. If that’s going to be the case, Rosen recommended:
- Informing the employee at their exit interview that the employer will give a negative reference so it doesn’t come as a surprise.
- Making sure the information staff shares with a prospective employer is correct.
- Stating facts to the prospective employer and avoiding conclusions.
- Including favorable facts.
- Making sure the employee’s personnel file is accurate.
Tread Carefully
“Be really careful about contacting a person’s current employer” without their express permission, Rosen said, noting that this could result in the person being fired. If the prospective employer then decides not to hire the applicant, they may sue as a result.
