A doctor was convinced that reference-checking was a waste of time. He hired a new hygienist without checking any references. Two months later, he terminated her after she injured two patients. One of the patients threatened to file a lawsuit, claiming “negligent hiring” on the dentist’s part.
Considerations
Obviously, you want to hire the best person possible and avoid hiring someone with a less than satisfactory employment record or a criminal history. Reference-checking is a key component in this process. When asked, many employers only verify dates of employment, the position held, and the rate of pay at termination. Therein lies a “Catch 22.” If you check references, you often aren’t given the information that would be most helpful because employers have become “gun-shy” after hearing horror stories of slander or defamation of character lawsuits. Yet, if you don’t check references, you can be sued for negligent hiring.
A negligent hiring claim can occur when references are not checked and an employee causes injury to another person (staff member or patient) or another person’s property. The assumption is that you might not have hired the employee if you had checked the individual’s references.
Of course, had you called, the prior employer might not have revealed any information, but the very fact that you attempted to get performance-related information by making a reference call will help protect you against a negligent hiring lawsuit. Avoidance of negligent hiring lawsuits requires making a good faith effort to check references. Obviously, not checking at all would not constitute a good faith effort.
Regulations in most states make it possible to inform colleagues of a former employee’s work performance and to receive truthful information when you make a reference call. In fact, about 37 states have enacted legislation under which employers are “conditionally” immune from civil liability for providing information regarding a former employee’s education, training, experience, qualifications, and job performance.
Solutions
Three key components support more meaningful reference-checking. They are:
1) Include an authorization statement in your application form that permits you to perform reference and background checks. Be sure the applicant signs the application form.
2) Have all applicants sign a form, such as our “Reference Request Form #105,” releasing previous employers from liability for responding truthfully to your questions about the applicant.
3) Have departing employees sign a form which authorizes you to give references - such as our “Authorization To Give References Form, #305” - as part of your ending-of-employment process.This form provides you with a waiver and permission to release employment and performance-related information to prospective employers. If an employee does not sign the release, tell that to the person calling for references and verify only dates of employment, etc.
Even with all of the signed forms, care should be taken regarding the type of questions you ask or the answers you provide. As a guide:
☛Create a reference checklist or interview form with a list of the questions to be asked of former employers.
☛Take detailed notes; keep them for documentation.
☛Don’t ask questions that could be interpreted as discriminatory.
☛Don’t ask questions you cannot legally ask during a job interview.
To help ensure that reference information is handled properly, follow these steps:
1.Ensure you have the applicant’s permission and a waiver of legal action in writing. You can then fax the signed authorization to the former employers, so that they are more likely to speak freely.
2. The information exchanged should be between authorized sources. Make sure the person who requests the information is “bona fide.” You may want to get a caller’s name and phone number and verify authenticity before giving out information, as well as designate who in your practice is authorized to give reference information.
3. The information shared should be factual - avoid assumptions and speculation.
4. Treat the information received confidentially.
5. Ensure the information you give is without malice or ill will.
6. Ask and answer only questions related to the job.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
