Legal Issues for HR Professionals: Reference Checking/Background Investigations

Abstract

Employers have a legal duty to protect their employees, customers, clients and visitors from injury caused by employees that the employer knows or should have known poses a risk to others. When an employer breaches this duty, they may be liable for damages under the tort of negligent hiring. Reference checking performed by employers is essential in satisfying their legal obligations. However, human resources specialists often find themselves in a quandary when reference checking becomes an issue. Confusion often results from legal advice to attempt to obtain as much information as possible on a potential hire while providing as little information as possible on a current employee because of the possibility of lawsuits. This article addresses issues the employer must consider when conducting reference checks and background investigations.