San Jose Business Lawyers Blog
Whether you are a startup company in Sunnyvale or a family owned business in San Jose, as an employer, you will have some basic employment concerns. In my previous two blogs, I discussed risks in looking for employees and evaluating potential applicants. This blog focuses on reference checks, both for potential employees and when another business owner calls you with regards to an ex-employee of yours.
When you are interested in an applicant, a reference check is always a good idea. In particular, checking references may be crucial to avoiding a claim of negligent hiring. This is very important when your employee will be working with young children, like a daycare teacher, or entering homes or businesses, such as an installer or a janitorial worker. However, reference checks can be a concern both when you are the potential employer and when you are the previous employer. Any information you ask and any information you give to a potential employer must not be discriminatory or retaliatory.
Often, a good strategy as the previous employer is to have a strict policy of only providing very basic information such as confirming that the employee did work for you, dates of employment, and position.
If they are going to give more information than just basic information for former employees, employers should use the following guidelines:
Disclose only truthful information.
State facts and avoid conclusions.
Include favorable facts about the employee.
Designate a limited number of employees to give references.
Obtain a release from the employee.
Require all employees asking for references to request the reference in writing.
When checking references for job applicants, have applicants sign a statement acknowledging that it is o.k. for you to contact their previous employers for references.
California employers are also allowed to conduct background checks, including criminal background checks and credit checks, on prospective employees. Employers must provide a written notice to applicants notifying them that the company will be running a criminal and/or credit check on the applicant. This written notice must be made in a document that consists solely of the disclosure. Prospective employees must first sign a statement authorizing the potential employer to run a criminal background and credit check, as well as any other drug related testing. The signed statement should be a document separate from any employment application or offer letter.