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Ask Jack: What Should I Do If Past Employers Don't Provide A Reference For An Applicant?

By Jack McCalmon, The McCalmon Group, Inc.



I am hiring for a position for which it is hard to find someone qualified. I found someone, but all his past employer will tell me is that he worked there and for how long. Should I move on?



Dear Jeff:

Unfortunately, too many employers have been told not to provide meaningful references. That is not the fault of the applicant, but rather the attorneys and others concerned about litigation for defamation, like slander, or for a negligent referral.

The fact is defamation claims, like slander, are rare; very hard to prove (especially the damages element); and truth is the "ultimate defense". As a result, good applicants may not get a job and bad applicants do because past employers are afraid to provide a meaningful reference.

I suggest that you call back the employer and ask a simple question that carries zero risk for all parties- "is the applicant eligible for rehire?" Whatever the answer, "yes" or "no", you will have a pretty good indication of what the employer thinks of the person or at least you will have something to discuss with the applicant.

The only exception to note involves when you are hiring people who will work with or around children, be caretakers for vulnerable adults, or for situations in which public safety is involved. For those positions, you have to verify that they are safe with children, vulnerable adults, and the public in their care. I also would be very hesitant to hire someone for a financial position without receiving a positive reference for an applicant who would have access to, or would be managing finances.

However, if those exceptions are not in play and the former employer refuses to answer the "eligible for rehire" question, then don't be afraid to call other employers and references.  

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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