Candidates give prospective employers permission to check their references because they know it's an important step that aids hiring managers and recruiters in the selection process. But, what happens when past employers won't provide comments or an ounce of performance-related feedback?

For fear of legal action, many employers institute a "name, rank and serial number" approach, which means that the only employment history to be disclosed to prospective employers is the person's dates of employment and salary verification. In the 1998 Society for Human Resource Management Reference Checking Survey, 76 percent of respondents said they provide references on request, but only 13 percent of respondents would comment on past employees' work habits and only 11 percent would discuss human relations skills.

In Jobspectrum.org's recent reference checking poll, 100 percent of respondents said they check references, but how much of the information gained is truly helpful when in comes to making candidate selection decisions?

"This topic is a real hot button," says Wendy Bliss, an attorney and certified senior professional in human resources, who authors Legal, Effective References: How To Give and Get Them (Society for Human Resource Management: 2001). Hiring professionals are frustrated because they want to get good information, as well as provide relevant information when they get calls, yet they fear being sued by former employees.

Protection Via State Laws

Publicized court cases prompted employers to clam up. But, some of those same cases led states to pass laws that protect employers. Six years ago, a suit brought against Allstate Insurance Co., spurred much attention. The negligent referral lawsuit was settled before going to trial, but a Florida judge ruled that Allstate could be sued for punitive damages for concealing the violent nature of a former employee.

In this case, wrongdoing allegedly occurred when Allstate wrote a recommendation letter saying the employee, Paul Calden, was let go as part of a corporate restructuring. In truth, Calden was fired for toting a gun at work.

Fireman's Fund Insurance Co. said it relied on the letter from Allstate when hiring Calden, who in January 1993 shot five Fireman Fund co-workers in the company cafeteria. He killed three of them, injured the others, and fatally shot himself. A survivor of the shooting and the families of those who were killed filed the suit against Allstate.

Since that case, "35 states have passed laws that protect employers by granting them immunity from civil liability for truthful, good-faith references," Bliss explains. Though the laws vary by state, "often the statutes specify that an employer will be presumed to be acting in good faith unless the current or former employee can prove that the reference provided was knowingly false, deliberately misleading, malicious or in violation of civil rights laws," Bliss notes.

The recent laws, and the general frustration that "name, rank and serial number" don't provide an effective reference, hiring professionals are figuring out how to offer up more reference information, as well as obtain it. One statewide effort worth a mention is the "Hire the Best" program in Oklahoma. The state Chamber of Commerce in conjunction with employers developed the awareness program to promote the state's reference-checking law, and encourage employers to work together, sharing information so the best candidates fill positions. Employers who joined the campaign vow to provide honest, informative references to their colleagues.

Time To Revamp Company Policy?

One way to get around company policy that restricts conversations about former employee performance is to ask for a personal reference, explains Jeff Hurdle, human resources manager for Rockville, Md.-based Shire Laboratories. When calling for references, Hurdle and his staff ask for personal references, which means the individual speaking about the candidate in question is not speaking on behalf of the former employer. The individual provides answers to questions and talks about work habits based on knowing the candidate as a colleague or professional in the workplace.

But a better approach would be to change company policy so it allows more leeway regarding the type of information to be disclosed. It's possible for employers to provide substantive references and reduce legal risk. To do so, Bliss suggests that employers develop:

• A written policy on how references requests will be handled.
• A reference authorization form for employee consent and waiver of liability.
• Savvy and consistent procedures for responding to reference requests.
• Appropriate reference documentation and record-keeping practices that comply with applicable laws.

Better 411 From Your Calls

Before you pick up the telephone, map out what you want to cover during the reference check. The call should focus on three things, explains Bliss:

1. Building rapport: "Your goal is to begin the call in a way that captures the recipient's attention and does not make him or her irritated or defensive," she says. In the first minute, "introduce yourself and make a connection among you, the applicant and the reference. Explain the purpose of your call in a way that will encourage cooperation. Emphasize that an important reason for your inquiry is to obtain guidance on how to supervise the person most effectively. A future focus and a little flattery will go a long way toward getting a reference to speak freely." Another tip: Don't use the words "reference" or "employment verification" when starting off the conversation.
2. Listening and probing. Start asking the simple questions first, using a reference check form as a guide. One way to probe deeper into answers received is to ask "scale" questions. Bliss explains: "Let's say you asked a former supervisor, 'How would you describe Bill's overall performance when he worked for you?, and the supervisor replied, 'Bill was a good employee. This response is fairly vague, so you might follow up on this response by inquiring: 'On a scale of 1 to 10 with 10 being the best, how would you rate Bill's overall performance?'"
3. Leaving the door open for future inquiries. When it's time to end the conversation, thank your source and invite future contact. Bliss provides a good example: "Ann, thanks so much for your comments about Bill. You've been very helpful. If you think of any other information that would assist in evaluating or working with Bill, please feel free to contact me. My telephone number is _____."

Coping with Reluctance

When references are reluctant to talk, what do you do? Persistence in a polite way is your answer, as well as these tips from Bliss that are discussed in detail in her book:

• At the first sign of reluctance, offer to read or send the source a copy of the applicant's written reference authorization. Emphasize that this document includes a waiver of liability that protects the source and his or her organization.
• If the source is located in a state that has a job reference immunity statute, mention this law and talk about the protection it provides.
• If the source still only offers "name, rank and serial number," explain that the applicant will not be hired unless you obtain information regarding the individual's work experience.
• If reluctance prevails, ask the source if the reason his or she refuses to talk is because there were problems with the past employee. If the person ignores the question, or seems hesitant, there may have been a problem.
• If information still isn't provided, try calling someone higher up in the organization, explaining your case to that individual.

Hiring professionals view reference checking as a critical tool in the selection process. Well-respected employers want to follow the golden rule (do for others and you would like them to do), so providing more than salary verification and dates of employment can help everyone involved in the process. "There are ways to establish a framework in which safe and informative responses to reference inquiries can be provided," Bliss says.

Michelle Martinez is a Leesburg, Va.-based writer specializing in recruitment, human resources and workplace management issues.