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Background and reference checks.

Background and reference checks present a dilemma for associations: Failure to do any sort of check can open the association to negligence suits if a new hire causes injury to someone else, but various laws and the fear of being sued for defamation make doing them very difficult. Despite the risks, associations should always verify information given by applicants and check references before hiring someone. In some cases, the law may actually require the association to do a background check.

The Basic Rules

The ground rules are simple. 1. It is perfectly legal to ask for references, verify information an applicant submits, contact references, and give references when asked. 2. All information, whether in the form of questions asked or statements made in response to inquiries from to others, should be job related. It is improper, for example, to inquire into an applicant's political, religious, or sexual beliefs or practices unless those are job related. 3. Any statements made or opinions offered should be factual or supported by facts. 4. Policy and procedure should be uniform for all applicants. If you give a test to one applicant, give the same test to the others. Don't have a "no comment" policy for former employees who sued you, while giving food references for people who left on good terms. 5. Background and reference checks should be done in the course of the interviewing and hiring process. Don't wait until the employee has been on the payroll for years or becomes a problem. 6. Never use the reference process to blackball or retaliate against someone. If you are asked directly whether the applicant has ever sued the association, answer that the association does not comment on such matters. If you are asking the question, don't interpret a refusal to answer as "yes." 7. Never lie or tell half the truth when giving a reference. While the law does not obligate you to talk, it will find you liable if what you say is false or misleading. This is why defamation is such a concern with references. 8. When possible, notify both applicants and employees that references will be checked (or given) and obtain their consent. Consent is not necessary, however, either to seek or give a reference.

What You May Ask

What areas of inquiry are permissible depends on why and from whom information is sought. Federal and state law does not forbid asking for references or prohibit background checks. It does offer guidelines on what you may ask applicants in interviews or on application forms. You may always ask an applicant to list references and tell him or her that all information may be verified.

The federal Equal Employment Opportunity Commission (EEOC) has published regulations on sex, religious, national origin, age, pregnancy, and disability discrimination. The regulations take the approach that asking about a protected characteristic - like gender or age - is not illegal in itself but may become illegal if asked for an improper purpose.

Age may be a legitimate question, for example, if the job requires a commercial driver's license for which you must be at least 21. But if you're asking because the association doesn't want to hire older individuals, the question is illegal. The Americans With Disabilities Act prohibits employers from asking applicants if they have disabilities or about the nature or severity of any disability.

Most states have antidiscrimination statutes even broader than federal law. Most also publish pre-employment inquiry guidelines. Illinois, for example, prohibits employers from asking applicants about their arrest records or other contacts with law enforcement agencies. Such an inquiry, the Illinois Fair Employment Practices Commission states, "is considered a violation of the Act regardless of the purpose for which [it] is sought."

There are legal alternatives to asking the applicant. Both federal and state antidiscrimination law prohibits doing indirectly what you cannot do directly. So, for instance, you can't ask an applicant what he or she does on Sundays to fish for information on his or her religious beliefs.

But you can ask other parties practically anything. Whom and what varies by state. In Illinois you could hire a private investigator to check court records to see if an applicant has any judgments or convictions. You could call the police department and ask whether the person has ever been arrested, or you could ask a reference this same question. Of course, if a rejected applicant proves that you acted unlawfully, the association will be liable regardless of where or how it got the information.

What You Must Ask

A little-noted trend is the number of states that require background checks in certain circumstances. Right now, such mandatory checks are concentrated on people hired to work with children, and they focus on arrest or conviction records.

Alabama law provides, for example, that every employer of paid staff or volunteers who supervise children must obtain a signed statement from each affirming whether the person has ever been convicted of a sex crime. Child care personnel in Arizona must be fingerprinted.

California permits but does not require employers to request records of all convictions for sex crimes, drug crimes, or crimes of violence if an employee or volunteer will have authority over minors. Maryland requires employees and employers to obtain criminal background investigations if they fall into one of nine categories having to do with children. Even in states where such checking is merely permitted, a plaintiff will cite the statute as evidence of the standard of conduct to which the employer should have adhered.

When You're Asking

If you are the person seeking information, these suggestions will keep your inquiry within the law and help get the information you want.

Questions should be job related and as specific as possible. "Is there anything else you want to tell me?" risks eliciting no information or eliciting the wrong kind. In one case, for example, the applicant replied, "Well, I'm married with two children, 41 years old, and in good health." When he didn't get the job, he filed a complaint with EEOC alleging he had not been hired because of his age.

Don't take unfavorable information at face value. Ask if there were any unusual or mitigating factors. If a reference says he or she suspects the applicant was dishonest, ask on what facts that opinion is based.

Unless information is essential for the job, don't ask references questions you are not permitted to ask the applicant. If you want to know whether the applicant has filed workers compensation claims, call the workers compensation board rather than ask the previous employer.

Try to ask applicants and references the same questions. Don't ask one group of applicants to supply references as a means of discouraging them; don't ask references if the applicant had attendance problems only when the applicant happens to be female.

When You're Asked

Stick to the facts. Discuss only those attributes of the applicant that bear on his or her fitness for the job. State fully and fairly the factual basis for any opinions you express; never lie or encourage a false impression. Don't volunteer information not requested. And never use your knowledge to blackball or retaliate against someone. If you don't know something or don't care to discuss it, simply say so.

Being asked is the riskier position: It is the provider of information who will be sued for defamation, discrimination, or retaliation. On the other hand, if a reference gives false or misleading information, the prospective employer may seek to hold him or her liable. Suppose a reference is asked how well the applicant got along with co-workers, and the truth is the applicant had repeated violent outbursts of temper. If the reference says, "fine," and the applicant subsequently harms someone, the new employer might seek to hold the reference liable on a reliance, negligence, or misrepresentation theory.

Why Do You Ask?

Associations must ask themselves whether doing background and reference checks is worth the trouble. Checking the references of potential employees is time-consuming, frustrating, and expensive. Here's why it's worth the effort: * Background screening can prevent tragedies or disasters. * The best qualified people stand out all the more strongly. * An evenly administered program can serve as a defense to discrimination or wrongful discharge suits. The courts recognize falsifying an application form as a legitimate business reason for terminating or refusing to hire someone. * Legitimate verification procedures can also serve as a defense in a negligent hiring suit. The employer can show it did all it reasonably could and that checking would not have disclosed the adverse information.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1992 American Society of Association Executives
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Webster, George D.
Publication:Association Management
Date:Jan 1, 1992
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