This Q&A reflects a panel discussion held at an HR Unit Representative meeting on January 20, 2005.
The discussion focused on merit and P&S reference checks and did not include criminal background or credential checks. The panel included representatives from Compensation and Classification (CC), Employment Services (ES), Office of the General Counsel (OGC), Hospital Human Resources (HHR), and the Office of Equal Opportunity and Diversity (OEOD).
Do we need to conduct reference checks?
(HHR) Yes, you do want to conduct reference checks. They help you make an informed decision and help you avoid negligent hiring issues. Also, the information may be helpful later in the management of the individual because it may give you some insight into the individual’s strengths and weaknesses.
What is the recommended practice on when a reference check should be done? Before you interview an applicant or after?
(ES) It is fair to applicants, and probably a better practice in most cases, to wait until after you have had an opportunity to interview the applicant and have asked questions during that interview to get a clear idea of what they did in their job and their various responsibilities. Then, when you are doing a reference check, you can ask specific questions of their reference and clarify any questions that arose from the interview.
(HHR) Sometimes travel costs may be prohibitive and you are seeking to narrow the field, so it can be beneficial to conduct checks prior to bringing candidates to campus. However, I agree with the recommendation that, in most cases, you want to talk with the candidate first, because it gives you a base of knowledge from which to gain more information.
(OEOD) For higher-level P&S positions, I suggest that you may want to consider conducting references before the interview is conducted, typically because the search and screen committee is extremely large, diverse, and busy. At times with high level searches, objective, job-related information about the candidate could have been discovered that would have made the search committee more efficient. You may reference information on the person’s resume, and you should let the person know that you are conducting reference checks, whether before the interview or after the interview.
What’s better, written references or verbal references? Where should you keep them?
(HHR) I recommend speaking with the individual from whom you are obtaining a reference. You would have the same list of questions for each candidate that are specifically related to the vacancy. Speaking with the reference directly allows you to pay attention to cues that you would not get from a written reference. A pause when asking about eligibility for rehire may tell you something. Some people are more comfortable communicating that type of pause in a one-on-one conversation than they are with writing that they would not rehire the individual. References should be kept in the recruitment file, not the personnel file.
(OGC) Make sure when you take your notes about the candidate that they are factual and objective. Omit opinion and emotion. And remember that if there is a question or challenge about the committee’s process or recommendation, those notes may become discoverable at some future time.
In recruitment, we often identify a specific number of references to be furnished. When you are reviewing applications, you find that some of them have not provided the requested number. Can you consider this to be an incomplete application, and no longer consider them?
(OEOD) It depends on the situation. If no references are provided with the application, you may consider the application to be incomplete. If you requested three references and your practice is to check all three references, you may consider the application to be incomplete. In many cases, however, people only check one or two of the three, or three out of the five, because of time, because of difficulty getting to the references, or because you get a sense that the references are either going all thumbs up or thumbs down, and you are satisfied. So, if you are asking the applicant to provide three references and you only will be checking two, I would not recommend that you consider the application to be incomplete. You are not treating the applicants equally, because you may end up hiring someone for whom you only checked two references. The person that you eliminated from the pool because they only provided two references may have gotten glowing or more glowing references than those for the person you are hiring. So, my suggestion is that if you are checking all references provided, that, yes, you could consider the application to be incomplete, but if you are not checking them all, it is not an issue of whether it is complete or not, it is an issue of fairness and equity.
(OGC) If they have only provided two out of three requested references, I think it is fair to go back and ask them for a third, so that you have the choice, even if you are only checking two.
(OEOD) We have had complaints of discrimination come to our office when certain candidates, typically the more successful candidates, had all of their references checked and, for individuals who were claiming discrimination or unequal treatment, only one or two of their references were checked, or vice versa. Sometimes, only one or two references were checked on the person hired, especially for internal candidates. The person outside of the University may have been disqualified because they did not have the requested number. Either way, inconsistency makes it more difficult for our office to defend your hiring actions.
What if you ask for letters of recommendation in your advertising and they do not provide them?
(OEOD) My answer is the basically the same. If you are using all three, then the application is incomplete if someone does not submit any, one or two. Let me add that letters of reference are not always reliable indicators of a person’s present and future job performance. Typically, people go to individuals who they know will give them a good reference, and people are usually more cautious about what they say in writing. Many supervisors have standard letters of reference and they fill in the blanks.
Can we require that one of the references be a current supervisor, rather than a colleague?
(ES) The merit application asks for the supervisor’s name and gives the opportunity to provide another person’s name as a reference. Sometimes they put the same name in both slots; many times they will put a second person. We state that supervisors could be contacted in order to verify that they actually performed the job duties reflected on the application.
(OEOD) I think it may have a chilling effect on the number of applicants. How many of you would want your supervisor to know the minute you send in your resume that you are looking for a job? You may want to let your supervisor know once you are being considered seriously. You will get some of the better candidates if they were being treated the way that you would want to be treated if you were looking for a position.
What is the best way to inquire about attendance?
(ES) I think the way you ask the question is important. You could ask “How would you rate their attendance? Would you say it is average, above average, or below average, compared to the rest of the people on staff performing the same work?" (MAKE THIS IMPORTANT NOTE: Any inquiry about attendance should not include information about absences protected under FMLA).
You have an applicant who has provided you with three references, but you also want to contact other people you know have worked with the applicant, but aren’t listed as a reference, and you trust and value these other individuals’ opinions. To what degree can you “shop” around for a reference?
(OGC) My response is not a purely legal answer as it is a best practices answer. It is wise to stick with the references provided. That certainly does not mean that if there are other individuals that you know of who would, very likely, have good information, that you could not go back to the applicant and ask them for permission to contact them. They could have a legitimate reason why they do not want you to call.
(OEOD) Occasionally, you may receive unsolicited references on a candidate’s behalf from persons not listed as a reference. If you accept the information, ask, “How do you know the candidate? Can you give me information regarding job-related criteria?” Ask them the same questions you ask other references. If they have never observed the person working, but know them through a professional association, there still may be some viable things you can ask. You may want to inform the candidate of such contacts when the information will be used to help evaluate the candidate’s ability to do the job. This is an ethical practice. As a candidate, if you told me who had contacted you, and gave me the opportunity to respond, it will give me a sense of being able to establish my credibility and ability.
When you talked to that caller, would you tell them that you are going to inform the candidate of their call?
(OEOD) I would tell them before they begin to share information.
(OGC) I agree with you. There should be no such thing as an anonymous “off-the-record” recommendation.
You have contacted three references that the candidate has provided. Two were glowing and one is very negative. How much weight do you put on the negative reference?
(HHR) I encourage individuals to go the candidate and say, “I have some information that seems inconsistent with the information you gave me in the interview. Can we talk about the discrepancy; can you let me know what your perspective is?” Listen to both sides and think about the possible motivation for the reference. Maybe the split with the former employer was on less than positive terms. Take into consideration all of the possibilities, and then make the judgment from the most plausible set of circumstances. How highly motivated does this person seem to be to get this job right now? What were the answers to the other interview questions? Take all of those things into account, try to determine the most plausible situation and then try to make the best judgment from there. It is a balancing act.
(ES) I also would look at the timing of the association of the candidate with the reference. If the negative reference is reflective of an older work history and work performance than the two more positive ones, possibly the more recent ones show that the person has turned themselves around or has gained skills that they did not have. Also, are the negative comments relevant to the job that you are expecting the person to perform?
(OGC) A second person on the search committee could contact that reference to see if the negativity of the comments is consistent or if there is something different, just to confirm the information.
What are the expectations of EOD when using references not to hire an individual?
(OEOD) From EOD’s standpoint, we would disclose information about the references to the candidate if you listed the references as an objective job-related reason for why the person was not hired. We need to establish that the University has made decisions based on an individual’s experience, background, and not on anything else. So, we would give that information if it was used to make a decision or used, in part, to make a decision not to hire.
If you can only get name, rank, and serial number from the references, is that a reason not to hire?
(HHR) In and of itself, no. You made a good faith effort to conduct references and I believe the hire would be defensible. If you can get a more thorough reference, encourage people to go back to the candidate and tell them you have not been able to obtain substantive information, and ask whether there is anyone else that could provide more complete information.
Does the fact that someone lists their work experience make it okay to call those previous employers?
(ES) On the merit application, it is understood that any information on that application is subject to verification and exploration. If a person gives a supervisor’s name or a contact person’s name, then all of those can be checked, with the exception of contract transfers. Unless you are in a department such as in the hospital or medical area, which requires reference checks on the current job, you can do reference checks on all positions except the current position when someone is transferring, because you cannot deny the transfer based on a reference.
(OEOD) For P&S, if the applicant has references that are from individuals five years or two or three jobs back, and you don’t have anything more recent, you may want to ask the applicant to provide references from more recent experience, unless the job they had five years ago is more relevant to the current vacancy, based on what you see on the resume or based on what you found out from the interviews.
You have an applicant who is currently employed at the University in another area and you have level 4 access on the HRIS system (or maybe you don’t, but you know of somebody who does), and you want to know how much sick time and vacation time this person has used. You also want to know if they have used FMLA. Should you access this information and can you use it in determining whether or not to hire this person?
(OGC) We should not be doing this for a couple of reasons. One is that it gives you information about internal candidates that you will not necessarily have about external candidates, so it is an unfair comparison. The second is that the FMLA absences cannot factor into the hiring decision. You can address attendance through interviews and references, but not by getting into their records.
If a merit staff member is contract transferring to another department, can you obtain references prior to accepting the transfer? This also could happen related to P&S staff that have been furloughed and are exercising their rights for a position. What part can references play in that priority situation?
(ES) You may check all references, including those from a current position, on employees who are seeking a merit position as something other than a contract transfer. For people who are seeking a contract transfer, our practice has been that you can check all references except the current job, unless the position is in an area where you have an agency that requires that you do reference checking prior to a hire. And that’s going to be primarily in the hospital or health care areas.
(CC) For P&S staff who are furloughed, if they meet the requirements of the position, the department/college is required to offer them the position. The department/college may contact the employee’s references, but the results of the reference check will not be the only rationale used to determine whether the employee is offered the position.
You are talking with a reference who was provided by the applicant, and the reference starts telling you information that is not-job related. It could be personal information, such as the person’s going through a divorce, caring for an aging relative, has a family member in jail, or they could start providing medical information, or saying that the person could be a good employee if they stop drinking or stop abusing drugs. You try to get this person to stop talking, but they are not going to stop until they have said what they want to say. What do you do with that information in determining if you will hire that person?
(OGC) You need to guide them back and remind them that you are seeking information related to the job and job-related duties. Sometimes you still get unsolicited information you do not want. Then you have a challenge in trying to balance information. Do you share that with anyone else, and if so, who might you share it with? I recommend that you call Central HR or our office (Office of the General Counsel), and talk about whether you use or do not use the information. Some of the information might be relevant and useful in considering the candidate. A tort in Iowa called “negligent hiring” has three elements. First, the employer knew or should have known of an employee’s lack of fitness for employment, if they exercised ordinary care. Second, the employee’s incompetence or dangerous characteristics caused an injury on the job after you hired them. Third, an employment or an agency relationship existed between the employer and the employee. If you have not done your homework, you open the door for a claim of negligent hiring by someone injured by your negligence. So, it is not necessarily information you should ignore totally; it is something you need to be very careful in reviewing to figure out what is truly job-related and what isn’t, and then going from there with it.
(OEOD) Another situation is when a reference may say that someone is an outstanding employee and that they were accused of sexual harassment. An allegation is not a finding, but you may want to contact the applicant and tell him/her that we would like to contact the equivalent office to our EOD or HR to verify the allegation and its resolution. The applicant’s response to this conversation may tell something about his or her character. All of this needs to be shared with the committee and may be something you consider regarding the candidacy. Be certain to focus on the applicant’s qualifications, not, for example, the applicant’s partner, spouse, family, or religion that may come up on the conversation. Your focus should be on job-related criteria and the conduct of the candidate in that particular job where that reference has observed them.
(OEOD) A good question to ask a reference is: “To the best of your knowledge, has this individual ever been accused, or broken a policy within your organization?” This may cover us even if the person says no, even if they do know and did not tell you. We, at least, can show that we made a good faith effort. It is a question to ask all references, and then write the answer down.
What do you do if you hire or interview someone and the individual asks to see their references?
(OGC) References should be retained in the recruitment file as opposed to the personnel file. Legally, an individual has access to their personnel file, but references should be kept confidential unless there is a previous conversation or written understanding from the person providing the reference that it is okay to share the information.
(OEOD) Any reference material should be collected from the search committee members and maintained in a central and secure location with limited access.
Do we need to get a signed release from the candidate before releasing information?
(OGC) A signed release is not necessary, but can be done.
(ES) Merit staff know those references are being checked. Like I said before, the fact that the person signs the application p rovides a release to check all names and information in the application.
Iowa City is a relatively “small community. If I want to get information about prospective staff members from area employers, I have to be willing and able to provide references on former/current staff members when asked by these employers. How do I manage this information flow and maintain positive working relationships?
(OEOD) In order to create and maintain positive professional relationships with your peers in Iowa City, I suggest adhering to all of the suggestions that we have discussed thus far today. If you give good references for bad employees, the subsequent Iowa City employers of those employees will soon not find you to be a credible professional. Likewise, if you conduct reference checks in unprofessional and unethical manner, good, credible, and qualified applicants may not desire to work here at The University of Iowa and even worse, tell their colleagues to stay clear. Honesty and consistency in practice are the best policies.
If a college solicits references for an applicant for a position and is not selected, can those references be used for another search in another department within the same college?
(OEOD) If the reference is going to be used for the identical job in another department in the same college, then it is okay to use the information. Keep in mind that the reference is conducted to not only find out how an applicant has done in present or previous positions, but also get a sense if the applicant can perform the job requirements for the specific job he or she is applying for. Thus, if the applicant is applying for a different job in the same department, then a separate reference check should be conducted.
Is it better for one consistent person to check references or to divide this up among search committee members?
(ES) If possible, one person should conduct the reference checks. The alternative is to have a specific set of questions that are asked by each person conducting the reference check.
It would be helpful to have a template of some of the questions to ask that are generic to most positions that departments could use as a guide. (See Reference Check Template)