Anonymous E-mail Reference Checks—Another Way to Get Sued

Employers have been presented with yet another “new” and supposedly revolutionary hiring tool—reference checking done by e-mail. The idea is that each reference is promised that their evaluations will remain confidential and anonymous because the results are aggregated. Job candidates are the ones that select the references that get the e-mails. Instead of making phone calls, the references can just fill out an e-mail questionnaire. The questionnaire is itself a scientifically designed assessment instrument that gives an assessment of the applicant.

On the surface, it can sound appealing as a reference can quickly respond to an email—no more time wasted on playing phone tag and the e-mail evaluations provides a scientific assessment for what is under the candidate’s hood. And finally, the employer gets a candid assessment because the person giving the reference believes the actual scores to be confidential.

There are areas of concern for employers:

First, if a background firm is the conduit for such a service, it falls under the federal Fair Credit Reporting Act (FCRA). One of the fundamental tenants of background checks is that there are no secrets. If a candidate receives a bad score, the candidate arguably has a legal right to find out exactly what each individual reference said about them. The problem of course is that the reference giver is led to believe that whatever they say will remain confidential. Under certain circumstances, that simply may not be true.

Another issue is that an employer cannot conduct due diligence by letting job seekers dictate which past employers to check. It is difficult to exercise due diligence when the applicant gets to pick and choose who is contacted for a reference. There is also the possibility of a fake or set-up reference, or an applicant creating a fake identity and evaluating themselves.

Background firms on the other hand do not take the applicant’s word for whether the past employer even existed. A background firm will typically independently verify that the past employer existed as well as verify that the phone number is real. The whole idea behind due diligence as a legal defense is independent verification. Even if past references are contacted for evaluation purposes, the task of verifying the truthfulness and accuracy of the employment history still requires a screening firm to independently obtain information from past employers.

Another issue is defamation. Just because an applicant signs a consent, that does not give permission for a reference to defame them with false or malicious information without liability.

The bottom-line: Although these e-mail assessment tools may well be an excellent tool for giving in-depth scientifically formulated assessment about a candidate during the decision-making stage, their proper use should be carefully considered. An employer should evaluate whether or not they provide protection if the employer is sued for negligent hiring and what other measures should be utilized. Nor can a reference really rest assured that they can give anonymous evaluations without the candidate ever finding out how they specifically rated the candidate.

This is yet another area where litigation may eventually decide what course employers should take and what rights applicants have.