Almost all employers on a regular basis receive calls from a prospective employer requesting information about a former employee. Today, most employers, fearful of a potential defamation or some similar legal claim, respond with nothing more than the period of employment and position held. Some even decline to respond at all. Rarely does a former employer provide any useful information regarding such things as the person’s job performance, disciplinary action, or the reason for their departure. In some instances, responding human resource managers, fully appreciating the dilemma that lack of information creates in a hiring decision, especially if it is negative, will politely ask the inquirer, “Do you have any other candidates?” Message delivered!
The inability to obtain needed information about a prospective hire can, in some circumstances, create the potential for claims of negligent hiring or negligent retention, especially in today’s litigious environment. Such claims can arise if an employee who was not fully vetted engages in conduct that harms another, often physical assault of a customer or fellow employee. The usual theory is that the employer was negligent by failing to confirm whether the person had a history of criminal assault or similar conduct before hiring them. If the claim is one of negligent retention, the argument is generally that the employer knew or should have known of the employee’s predisposition to engage in violence yet continued to employ the person. The fact that the employer tried but failed to obtain such relevant information despite making sincere efforts is rarely a sufficient defense. Employers, often knowing that they are not likely to obtain useful information, nonetheless make the effort to at least be able to demonstrate that they tried. Compounding this entire issue is the current trend to prohibit employers from delving in to an applicant’s criminal history during the hiring process. The “ban the box” movement is a perfect example. More and more jurisdictions are considering it to be unlawful for an employment application to require an applicant’s criminal history before hiring. In those jurisdictions, such inquiries may only be made after a job offer has been extended.