Is it against the law for a potential employer to call your current or past employer for a history check? You know asking questions like “Did she do a good job, how was her attendance, What was her salary, Would you recommend her?”
Seems to me the only thing I think they could check is your dates of employement.
Illegal? Thats the first time I heard of that. However, the past/current employer is not obligated to tell them a darn thing.
Potential employers cannot contact your current employer about you without your permission (you’ll notice that on most applications, you’ll be asked whether or not they can contact your current employer). AFAIK, potential employers can only make sure that you did, in fact, work at the companies you’ve said you worked for, and from what dates.
I suspect that whatever laws there are can be “worked around.” There’s got to be a secret HR code whereby they can exchange the useful info without getting in trouble…
“Yes, he worked here. Onto other topics: I have a horseracing tip on Drinks At His Desk…”
In my case right now, the laws, if they’re followed, work against me. I left my last company over a job title/description dispute. They had me doing one job, but “officially” I was doing another, much less important job. Anybody who calls them to check my references, hears the “official” version of what I did. I hope to hell the HR people, who know me and (I hope) like me, bend the rules (if any) enough to give an overview of my actual duties.
I’ve spent many years in HR, and I’m intimately familiar with the laws and regulations regarding background and reference checks.
When you apply to a company, that company is entitled to do whatever it wants – anything that’s legal, that is – to determine whether or not you’re likely to be a good employee. In that respect, Beadalin, you are incorrect in saying the company can’t call your previous employer without your permission. However, due to our highly litigious society, the overwhelming majority of companies do make sure to get your permission first, just to cover their asses. This isn’t necessary, but it does cut down on the lawsuits. Most of the time, this comes in the fine print on the application they all make you fill out. If you haven’t actually read it, almost all of them say something like this: “I certify that all of the above is true and accurate to the best of my knowledge. By submitting this application to XYZ Corp, I understand and give permission that XYZ has the right to verify the information I have submitted. This includes academic transcripts, reference checks, credit reports, and any and all other means,” blah blah blah.
However, on the flip side, most companies don’t generally volunteer information in response to reference checks, again because of the risk of litigation. Joe Blow may very well have been a disruptive, unmanageable employee. But his old company isn’t about to say that, because, even if 100% of his co-workers agreed, it’s still a subjective statement, a nonmeasurable judgment. They may be able to defend themselves in court, but it’s really not worth the trouble. They got rid of that guy; they don’t care what problems he causes other companies. That’s the legalistic, corporate position, of course. Individual people at the old company may feel bad about whoever gets stuck with this guy next. But their company’s self-protective policy means they can’t do anything about it.
In addition, the most valuable tool for defending these subjective judgements, the performance appraisal, generally isn’t very useful. The overwhelming majority of people are nonconfrontational; they don’t want to stir up trouble or make people’s lives difficult. Performance reviews tend, on the whole, to be softballs, i.e. they don’t detail all the negative stuff. Managers therefore “hope for the best” with a problem employee and turn in a vague review, thinking they’ll either just cope with the troublemaker or try to get him transferred somewhere else. This is a real issue; it happens all the time.
As a consequence, when that employee moves on, you don’t have a hard-and-fast paper trail that you can point to as justification for negative reference comments. If the ex-employee sues, and you have a bunch of vague, not-very-negative performance reviews, the jury will wonder whether the ex-employee’s paranoid ravings actually have a basis in fact. (Just one of the many ways “trying to be nice” can come back and bite you in the butt.)
Furthermore, the people who respond to reference interviews are often the frontline managers and co-workers, people who aren’t as familiar with laws and legalities as the folks in HR. (Yeah, I know, a lot of you love to hate the HR staff, but really, there’s a lot of stuff they do behind the scenes, trying to balance their almost irreconcilable mission of protecting the employees’ rights while simultaneously protecting the company. This conflict is what caused me to look outside HR for a new career track; it’s a painful, thankless life. Anyway…) What this means is, the manager or co-worker may respond to a reference question with something that’s totally, unjustifiably illegal. Here’s an example from my own work history, ridiculous and extreme as it sounds: The manager actually said of an ex-employee that “he was getting old and kind of slow.” When we heard he said that, we almost popped a collective blood vessel.
The bottom line is this: There’s nothing illegal about conducting a reasonable, well-designed reference and background check. However, there are so many potential pitfalls and high-risk traps that most companies don’t officially respond to informational requests beyond simple hire-date/term-date, title, and rehire status (yes or no), information that’s concrete and not subject to interpretation. Further, when a company conducts a reference check, they almost always ask the candidate to verify those references are available and willing to talk, thereby implicitly gaining further permission for the check from the candidate.
Hope that helps.
By the way, are you asking because you have a specific incident that concerns you, or is this just general curiosity? If it’s the former, you might consider posting the details to see if any SDMBers can offer perspective on the particulars, as opposed to a blanket description like I give above.
Woops, sorry to have posted misinformation. My group at work is in the process of interviewing candidates for an internship, and this very topic came up. I guess I should check things before repeating what I heard!
Thanks for the info, Cervaise.
To add another small notation to Cervaise’s excellent comments:
check out the local law, as well.
In Michigan (my state), I, as an employer may provide information that is contained in the employee’s personnel file, and have no reason to believe that it isn’t true.
Many companies will, indeed, in order to avoid potential litigation, only provide minimal information. However, IMHO, that does a disservice to those employees who are exceptionally good.
Thanks for the info Cervaise.
I have a tangential question – during my recent job search I was asked incessantly about salary history. I mostly refused to give this out because
(a) I chose to stay at a position that underpaid me for personal reasons (my soon-to-be-wife worked there).
(b) I don’t see how it’s relevant. If I’m worth x, I’m worth x, and I don’t see how knowing I made y at my last position matters.
Anyhow, you would have thought I was breaking one of the 10 Commandments from the reactions I got. Very hard to stick to my guns without getting too confrontational about it.
So my questions are, how much of a right do they have to ask about salary histories, and do you have any advice on the best way to handle this with future employers?
That, muttrox, is one of the stickiest quandaries in the field.
The new employer wants to know what you were paid so they can make you an offer that’s 5-10% higher. If you were underpaid, that’s a bonus for them, because you get a raise from your previous paycheck but the new company saves a few dollars. If you were overpaid (in their estimation), they then have a means of making an excuse of why you aren’t getting a big bump.
You, on the other hand, want to get paid what you’re worth, regardless of what you used to be making. You also don’t want to be penalized if you were in your position for a few years, and are now underpaid compared to market values.
(How does this happen? New hires get larger raises than existing employees. Existing employees, year to year, average about 3% in wage increases. [This is for white collar work, by the way. I’m not in manufacturing, medicine, etc., and can’t speak to those fields.] Salary inflation for new hires, on the other hand, runs 4-5%. Consequently, if you’ve been in a position for a while, your pay will tend to lag behind market values, unless you’re lucky enough to work for a progressive company that makes the effort to keep its salary increases current and competitive. Most don’t.)
How do I deal with it? My answer goes something like this: “I’d prefer to talk about the value of the job, rather than my past compensation. I tend to stay in positions long-term [hiring people love to hear this], and my salary tends to lag because I’m not actively job-hopping. You know how that is. [If they’re honest, they’ll nod, because they’re fully aware of this phenomenon, as detailed above.] I’ve also discovered during the interview process that my current [or previous, depending on the situation] company’s salary structure is somewhat below market norms. Now, I know you want to pay me a fair wage, and I don’t want to confuse the discussion with references to my old salary, which is an inaccurate benchmark for the two reasons I’ve described.”
If you can sell this answer, you won’t get another question about previous salary. Good luck.