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Reference Checks and Professional Liars

Most Austin employers collect professional and personal reference information from potential employers. A surprisingly common part of my legal services often includes encouraging employers to call those references. Indifference to the reference-checking process is such everyday folks without decent concerns understand they may still get a job even if they write down the contact information of people who dislike them. When analyzing the cost of a failed hire, which includes interviewing, paperwork, and training costs to the organization, it is clear that employers must do more diligence before hiring a potential employee.

Even when an employer does call a potential employee’s references, they are often only told the dates of employment, the status of rehire, and salary. Employers regard this as the “safe information” that can be provided without tort liability. In Texas, our legislature saw fit to protect employers from these claims in 1999 by passing HB 341, that codified previous common law protecting truthful but negative comments about previous employees. The Texas Workforce Commission provides an excellent discussion of the application of Texas law on its website. Still, depending on the size and industry of the employer, I counsel many of my clients not to provide more than the basic information during a reference check because, legal or not, providing a bad reference can anger a former employee enough to have negative reputational consequences for the employer.

I also guide my employers to do more than check references. More specifically, I insist my hiring employer clients use Internet-age common sense. Today, some services like Allison & Taylor or will do a bit of a pre-workup and tell job-seekers what their references are saying. This allows potential employee to manipulate their job application. Most alarmingly, entities like Paladin Deception Services exist to provide “covert disinformation” to potential employers (or jilted spouses).

As an employer, if you have a hunch that parts of a potential employee’s background are not adding up, here are some steps you can take to avoid a wrong hiring decision:

  • Ask the applicant over the phone or in a subsequent interview about the inconsistencies;

  • Ask for additional references that can provide insight into the area of inconsistency;

  • Decide to hire the person but be extremely diligent during a probationary period; or

  • Decide not to hire the person.

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