With all the concerns about lawsuits, trying to get other employers to give meaningful reference information on candidates was becoming nearly impossible.

It’s easy to see the problem. The company gets a call out of the blue asking about someone who worked there three or four years ago.

Why should they open up to us with any more than name, rank and serial number?

That’s the problem. Coming up with a solution was another matter – until we figured out how to involve the candidates and our own supervisors in the reference process. Here’s how we pulled it off:

You make the call

As soon as we decided a candidate might be a good fit for us, we wanted to talk to past (not current) employers who might give us some further information on the candidate.

We knew the out-of-the-blue call wasn’t working and that we needed some type of ice-breaker. So, why not let the candidates be the ice-breakers?

Our instructions to the candidate went something like this: “We’d like to talk to a few of your past employers about how things worked out for you there. Please give your old boss a call explaining why we’re going to call and that you’re OK with it. Let us know when you’ve made contact and when it’s OK for us to call.”

Smoothing the way

Of course, some candidates never contacted us again. That was OK, however. We figured if they couldn’t work something out with their old bosses, then there was some sort of red flag and we were better off ending the process.

A lot of people did get back to us with the news that they’d arranged an entrée for us with their old bosses. That smoothed the way for the reference call – the old boss was prepped for the call and had the candidate’s approval to talk.

The next thing we needed to do was structure a conversation that got the information we needed to make a sound hiring decision.

Boss- to- boss

To get the right information, I brought in a third party – the person who would be supervising the candidate if hired. Why the supervisor?

I figured the person on the other end of the phone would be a lot more comfortable with talking to someone on the same level who probably worked in the same field.

For instance, if we were hiring someone in accounting, the talk went a lot better if it was between our accounting manager and another accounting manager – instead of HR manager to accounting manager.

The results: Our reference calls are a lot more like casual conversation than grilling sessions between me and some faceless manager who doesn’t want to talk in the first place.

Further, we get a lot of excellent information on which to base the hiring decision.

(From a presentation at the Annual SHRM Conference by Paul Falcone, HR director, Paramount Pictures, Hollywood, CA)

The EEOC program designed to combat discriminatory practices tied to background checks is called E-RACE (Eradicating Racism And Colorism from Employment). It started when the agency noted, in the last few years, a steep climb in complaints from applicants who said they were unfairly excluded from competing for a job because of information that showed up on a background check.

What sort of information? On the face of it, nothing extraordinary — a criminal record or a poor credit rating. The problem came when applicants were able to show that the criteria used had a negative impact on hiring opportunities for black and Hispanic males, who statistically have higher arrest rates and lower credit scores than white males.

Here are two background-check practices that have caused the biggest headaches — with the EEOC and in court — for employers:

• Blanket policies against hiring anyone with a criminal record or poor credit score. The sticking point for such policies is that, without knowing it, an employer could routinely give preference to whites. What to do: Check to see if your practices exclude most blacks and Hispanics, whole opening the door to white applicants. If you see a pattern, the EEOC may see one, too.
• Failing to show the correlation between background checks and the job itself. The EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.

An anesthesiologist was fired for stealing prescription narcotics from the hospital where he worked and for being under the influence of drugs during his shifts.

When the applied for a job at a different hospital, his former boss was asked for a reference. For reasons unknown, the supervisor declined the mention the termination and, in fact, wrote that the ex-employee was “an excellent clinician” and would be “an asset to any anesthesia service.”

He got the job. About a year later, the doctor, while under the influence of narcotics, botched a routine procedure that left the patient in a permanent vegetative state. The hospital was sued by the victim’s family and forced to pay $8 million in damages.

In turn, the hospital sued the doctor’s ex-employer, claiming the supervisor negligently provided a positive reference.

The court agreed. Employers don’t have a legal obligation to respond to reference requests. So if the hospital had said nothing, it wouldn’t be held liable.

But once an employer offers some information, the judge said, it has a duty to be truthful. So in this case, the hospital was on the hook for the supervisor’s blatantly false statements.

Cite: Kadlec Medical Center v. Lakeview Medical Center

Workscore, currently in beta, has several not-new features, such as rating your own workplace and seeing how others rate their workplaces. But the most interesting feature involves letting users build a social resume — a profile of their skills, plus ratings from co-workers the user has selected.

Users who collect enough ratings can then send ratings links to individuals — such as HR managers — at prospective places of employment. Essentially, it’s a way for a job hunter to say, “Here’s what others (but not my boss) think of me.”

The site — and the social resume — is a reaction to the reluctance of managers to give references and appraisals on a  former employee when contacted by a company thinking of hiring the employee.

The flaw?
Yes, we see the flaw: So, someone gets his buddies/workmates to give top reviews that make the applicant look like the best thing since the invention of the microchip. The fix is in, right?

Well, maybe. As we said, Workscore requires users to amass a bunch of reviews, not just one or two. That means people looking to game the system will have to find a whole bunch of buddies at work willing to play along. Further, users who are reviewed can’t see the scores individually or change them, so the user is taking a bit of a risk by sending blind reviews to an employer.

And reviewers remain anonymous so they can’t get sued for saying bad stuff about an employee.

One quirky caveat: The system allows users to weight individual scores. In other words, if a user thinks a particular reviewer is likely to give high scores, the user can give those scores greater weight. Conversely, if a user thinks a potential reviewer is likely to be critical, that score can be given a lighter weight. Though you’d have to wonder why a user would approach someone like that for a review in the first place.

How valuable would Workscore ratings be to applicants and, especially, HR managers? It’s unlikely you’d ever hire someone based solely on Workscore ratings, no matter how much you might trust them. The ratings might develop into just another tool used to judge the applicant. We’ll see.

Note: As mentioned, Workscore is in beta, so if you give it a run-through yourself, you might hit a few technical bumps here and there.

It’s a constant challenge for employers: Offering the benefits and incentives that employees desire without running into compliance problems with the feds.

Here are three popular benefits that present a legal minefield for benefits managers — and ways companies can offer them without fear of repercussions.

1. Wellness programs and the ADA

While every employer wants to promote healthier lifestyles for its employees, some wellness initiatives run afoul of the Americans with Disabilities Act — if the initiatives are constructed in a manner that makes it more difficult for certain employees to participate.

Example: A company unveils an on-site exercise program; participants can bring home perks like extra vacation days, cash bonuses, gift cards, etc.

Problem: The company has several disabled employees who are physically unable to participate and, therefore, can’t reap the benefits of the rewards.

Fix: If your wellness program includes certain features in which disabled employees can’t participate, create some alternatives where these employees can earn the rewards — like attending a class on the benefits of doing the cardiovascular exercises permitted by their disability.

Note: Don’t forget the tax implications of your rewards.  For example, all cash equivalent rewards — gift cards, etc. — are taxable, where as the tax status of an iPod Shuffle or movie tickets is uncertain.

2. Domestic partner benefits

While domestic partner benefits are highly coveted by many employees, domestic partners aren’t generally granted the same protections as spouses under ERISA and the IRS regs. For example, unlike spousal health coverage, domestic partner benefits are taxable.

However, there are two exemptions:

1. If the employee’s partner qualifies as a dependent, or
2. If the partner is recognized as a spouse or the benefits are protected under state law, as in MA, CT and VT.

And there are more restrictions surrounding the rules for flexible spending accounts (FSAs). However, ERISA trumps state law, and flex accounts are subject to the Defense of Marriage Act (DOMA), which only recognizes traditional marriages.

The effects: Flex accounts may not reimburse workers for domestic partner medical care, care of a domestic partner’s dependent, etc.

To get around the red tape, many companies require the employee to cover the entire cost of the partner’s health coverage. To balance this out, some employers adjust the worker’s pay to make up for the difference.

For a more extensive look at the tax problems with domestic partner benefits, check here.

3. Employee referral programs and the EEOC

The Equal Employment Opportunity Commission has already addressed the problems that accompany word-of-mouth recruiting. According to the EEOC, employee referrals can limit workplace diversity and increase the risk for discrimination because employees tend to only recommend colleagues of the same race, gender ethnicity.

Potential legal problems: Even in cases of accidental discrimination, companies that do extensive hiring based on employee referrals can be fined or sued by the EEOC. To add to more pressure to employers, EEOC compliance manuals now recommend that most firms scale back — or eliminate altogether — their employee referral programs.

Safeguard: If your company has no intention of scrapping its employee referral program, make sure to measure its effect on employee diversity and encourage widespread participation.

The site unashamedly calls itself as the “alibi headquarters of North America.” Visitors can access a wide range of services, such as:

• Fake employment verification
• Fake job references
• Fake rental references
• Fake business, trade show invitations
• Fake doctors’ notes

The site used to be known only as a source for  phony conference programs and phone screening to give people plausible cover stories. Now, however, it’s moving onward and downward.

The facts: 
During a workplace dispute, an employee struck and injured a co-worker. After the employer reported the incident to the police, a subsequent investigation showed that the attacker had been involved similar incidents. The injured employee received workers compensation for the injury but also sued the employer for damages, saying that HR and the employer hadn’t dug deeply enough into the attacker’s past and as a result, had hired someone who was a danger to other employees. 

The employer said:
HR had done the typical and reasonable background checks on the attacker and had run the usual reference checks, too. None of that had produced any record of a violent past or a likelihood that the employee would harm a co-worker.

Who won the case? 

Answer: The employer. 

Why:
An appeals court ruled workers compensation was a suitable remedy for the injury the employee suffered during the attack.

Two factors led to the decision:

• In many states, employees who receive workers comp for an on-the-job injury can’t turn around and sue the employer for circumstances surrounding the injury unless the employer was totally negligent in hiring or failing to protect the victim.
• HR had done the usual background checks before hiring the attacker, and nothing fishy turned up. Had his violent history become known – and ignored – during the checks, the outcome of the case might have been different.

Not Sherlock Holmes, but …
You know you can only go so far when it comes to doing a background check on job candidates. But the ruling shows if you do uncover something suspicious, you better take action and either determine there’s nothing to the suspicions or there’s enough to deny employment.

Courts don’t necessarily expect HR managers to be Sherlock Holmes and uncover every hidden detail about a candidate’s background. They, however, do expect companies to do reasonable checks and act on anything – such as a history of harassment or violence – that might disqualify the candidate.

Cite: Peterson v. Arlington Hospitality Staffing, Inc.

CareerBuilder.com did a survey of 3,169 HR managers and asked how many screened applicants by checking their profiles on social-networking sites, such as Facebook and MySpace.

• 22% said they used the sites to do applicant-background checks, up from 11% a year ago.
• 34% of those who used the sites said they found something that immediately led to disqualifying the applicant as a viable candidate.
• 41% who disqualified candidates said they were motivated to do so because of profile info about drinking or drug use; 40% said they nixed candidates because of inappropriate photos.
• Another 9% said they didn’t do research on social-networking sites but planned to do so in the near future.
• On the plus side, 24% said they found info that improved the candidate’s chances of getting hired — such as qualifications, good communication skills or imaginative use of social networking.
• And some applicants aren’t clueless about the trend; 16% said they’d tailored their profile info to appeal to potential employers.

Site name: CriminalSearches. 

URL: http://www.criminalsearches.com/ 

Who runs it: Sacramento-based PeopleFinders 

What it provides: Before we get into that, let’s stipulate that when we tested the site, it advertised that it was in beta – which, as you probably know, is a “get-out-of-jail-free card” (no pun intended) for all boo-boos on the Web site. The developers admit there may be mistakes and oversights, and ask for our forbearance while they test and work things out. 

Anyway, the sight is supposed to provide a search engine in which you enter a person’s name and choose any or all states in which that person may have committed a crime. Then you get a list of offenses tied to that person’s name. The offenses are coded into seven types: “Behavioral,” “Business,” “Drug & Alcohol,” Sex Related,” “Theft and Robbery,” “Violent” and “Traffic/Other.” 

OK, there’s really only one way to test something like this: Enter the name and state residence of someone you know who has a criminal record, and see what you get back. So that’s what we did. Never mind who the person was, or how we know the person. 

Here’s what happened: The search engine spit out the person’s name, date of birth and the date of an offense – a five-year-old traffic violation. That probably was accurate, but it overlooked and didn’t list a drug felony conviction that took place around the same time. Hmmm. 

The flaw in something like this is obvious. If it’s wrong just once, the entire site loses any value to the user, although maybe it could serve as a backup to other background checks you might do. Also, we’ll underscore again that the developers clearly indicated the site was in beta, so maybe the best advice we can give is for you to check back on the site in the future and test it yourself. Of course, not that you’d know anyone with a criminal record.

Some companies, and HR managers, take the approach of only giving out barebones information, such as verifying dates of employment, just to stay out of legal trouble. That’s OK, but you don’t have to feel so boxed in when you get a request for a reference.

Consider three possible steps:

Warn problem employees at the exit interview. About half of all reference-request problems can be erased before the request is even made, by just warning the employee, “If contacted, we won’t be able to give you a positive reference.” That puts the employee on notice to go another route when mentioning references to a prospective employer.

Get a written release. Tell the employee that you require his or her signed release before giving out reference information. If the employee refuses to sign, your option is clear: Any requests for reference information should be met with: “I’m sorry, but Joe refused to give us the OK to give out information.”

Channel all reference requests through HR. Some managers may take offense to the idea that you’re denying them the chance to have their say about a former employee, so you’ll probably have to explain the reasons why:

• Some prospective employers may contact more than one person in your company, and you want to avoid giving out conflicting information.
• An incorrectly worded reference can be cause for a lawsuit. Sometimes even seemingly innocent and truthful statements can get twisted into damning evidence against an employer.