What can I ask (and not ask) a job candidate’s prior employers?


Additional Information:

As an employer at a Ashland, MA company what kind of information can I ask a job candidate’s prior employers?  Isn’t the onus on the prior employer(s) to say or not say certain things?  Is there anything definitely off limits?

ATTORNEY ANSWER:

In terms of job references, there are few limits to worry about. You may ask pretty much any questions you want and think are important, with obvious exceptions for subjects that may touch upon an applicant’s race, gender, religion, etc. You are correct that a former employer faces more risk in the job reference process than a prospective new employer. He/she needs to be careful to provide only accurate factual information. In addition, and though former employers are legally free to offer opinions about their employees, they are normally careful to avoid derogatory remarks. That’s because making negative comments can lead to allegations of defamation, something every company wants to avoid, regardless of the merits of such a claim.

It is largely for this reason that many employers now decline to give job references at all. They simply provide confirmation of job titles and dates of employment. This is, in fact, the preferred policy, legally speaking, as it avoids risks to employer and employee alike. Practically speaking, a former employer has no interest in keeping its old workers from finding jobs. On the contrary and particularly where a worker was fired, the opposite is true. The best development for an employer that has terminated an employee is for that worker to land a new job. This gets him/her focused on the future rather than any past disputes. For this reason, it may be hard for you to get any information at all via direct contact with an applicant’s former company. You may be better off seeking personal references from your applicants and contacting them for insights.

Ashland Employment Attorney, Jack Merrill, provides legal representation to employees, employers and businesses in Ashland and throughout the Boston metro west region including Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Southborough, Sudbury, Waltham, and Worcester, Massachusetts.