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Can Employers Contact References Without Permission? Top Compliance Tips

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It’s comforting to have a friend recommend a new restaurant or vacation destination. Word of mouth is king and it’s only natural to want stellar recommendations when hiring employees. Finding work ethic and culture fits are certainly a lot easier when speaking with referrals. But before you start calling referrals, know that there are certain rules you have to follow during reference checks. 

We’ve listed the top questions we get asked about contacting references without permission. Can employers contact references without permission? What are backdoor reference checks and are they illegal? Here are our top answers and compliance tips regarding checking references. 

If a Candidate Asks You Not to Contact Their Current Employer

It’s ultimately up to you, but we recommend that you respect the candidate’s wishes. When candidate’s ask you not to use references from their current employer, it’s (usually) for a valid reason. While it may be tempting to see this as a red flag, be open to see the situation from the candidate’s perspective. Some common reasons that candidates request a vow of secrecy include: 

  • Keeping their job hunt on the down low. The candidate isn’t ready to inform their employer about their search for a new opportunity. It’s understandable that they don’t want to put their livelihood on the line, their current employer could fire them if they find they’re looking for work elsewhere. (Even though we don’t recommend terminating an employee for looking for another job.)
  • Fear of repercussions in their current workplace. If word gets out about their job hunt, current employers or coworkers could retaliate and treat the employee differently if they decide to stay at their current company. 
  • Inaccurate responses. A toxic boss might give an inaccurate statement about their ability to do the job based on personal conflict that isn’t accurate to the job’s responsibilities.

Can Employers Contact References Without Permission?

Legally, yes, you can contact references without permission and backdoor reference checking isn’t illegal. The decision is up to you, but it’s highly recommended that you respect the candidate’s request not to contact certain references. The hiring process should make an effort to build the candidate’s trust with the company. If you contact previous employers against a candidate’s wishes, they may feel disrespected.

If you do decide to contact the current employer despite the candidate’s request, it’s best practice to let the candidate know beforehand and explain what questions you will be asking their employer (job performance, job title, etc.). The candidate may opt to let you go ahead with the reference check or they may decide to withdraw themselves from consideration instead of having you reach out. Either way, it’s best to let them know your intentions, especially if contacting their current employer could have negative repercussions for them.

Are ‘Backdoor’ Reference Checks Illegal?

man doing a backdoor reference check

It’s known as a “backdoor reference check” when a recruiter reaches out to a contact that was not provided by the candidate. There’s other names floating around for this such as informal checks, or quiet checks – they’re all the same thing. Through networking sites or contacts, recruiters can identify mutual connections that can answer questions about a potential candidate. 

Wondering if a backdoor reference check is illegal? The answer is no. Even though it’s legal to perform backdoor reference checks, it can cause problems. You may have to deal with:

  • An uncredible source. When reaching out into the unknown, you never know what you’re going to receive. You may find yourself contacting an unreliable contact that didn’t work directly with your candidate or at a different time period or location.
  • Biased information. Selecting a random ex-coworker or connection can end up being a best friend or an enemy, either way you’re probably going to receive a biased review. 
  • Broken trust. Contacting references the candidate didn’t provide will confuse them and break any trust they have with you and your company during the process – especially if you contact their current employer without permission.

Reference Check Compliance Tips

Ask Compliant Questions

Be mindful of the information you can and cannot receive. It’s crucial to be respectful of company policy and know the restrictions on what information references can legally provide in your state. For example, you can only request information on “job performance” from an employer in Illinois. 

When reaching out to employers, their company policy may prevent them from sharing some job specifics such as salary and dates of employment. These company policies aim to prevent risk of liability for discrimination or defamation. 

Stay Organized

When speaking to a referral, it’s best to have a script. Asking each referral the same question gives your candidates a level playing field. Plus, without a standardized process, you could miss crucial details about your candidate. An organized approach will help you stay compliant and get the best information. 

Avoid Bias and Discrimination

Be sure to talk to multiple references to reach common themes. (Just like in baking, the key to reference checks is consistency!) If certain referrals seem far off from the others or unreliable, use your best judgment to determine the accuracy of their story. 

Interviewing references is similar to conducting a job interview, you can’t discuss personal information in reference checks. Even if you don’t realize you are being biased or discriminatory, even the best interviewers can slip up. To avoid that slippery slope, don’t ask personal questions unrelated to the job description. As a reminder, you cannot ask about:

  • Age
  • Marital status
  • Ethnicity
  • Sexuality
  • Religion
  • Disability

These, and others, fall under federal Equal Employment Opportunity (EEO) Laws that protect candidates from discrimination.

HR Can Keep You Compliant

Too often, HR leaders and business owners get bogged down in the nitty gritty details of HR. (Wait, what can I legally ask in a reference check again?) Business owners and HR leaders, consider outsourcing HR to help expand your talent search and streamline your recruitment process. Outsourcing HR gives you access to HR gurus who have mastered what you can and can’t ask references. So you don’t have to worry about asking the wrong questions and potential legal penalties. They can help you build an organized approach to the referral process, know what to ask and how to interpret the responses.