by Paul W. Barada
Monster Salary and Negotiation Expert
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During the 20-plus years I've been in the reference-checking business, I've found that one of the most common fears among employers is being sued for invasion of privacy. While it is an irrational fear, it nevertheless needs to be addressed.
Prospective employers fear candidates for employment will sue for invasion of privacy if they do any reference or background checking. Here's the solution: All an employer needs is a signed waiver of the right to privacy. This allows the prospective employer to check if candidates are who they claim to be and if they are suitable for the job to be filled. How is that done?
The first thing employers need to understand is that the act of applying for a job -- simply filling out a job application or submitting a resume -- is an implied waiver of the right to privacy. Doesn't it make sense that, at the very least, permission to check the information provided is implicit in the act of applying? Can you imagine a candidate saying, "Well, just because I told you where I worked, who I worked for and what my responsibilities were, it doesn't give you the right to check to see if I told the truth." That's absurd.
But for employers who want to eliminate the invasion-of-privacy risk altogether, the simplest thing to do is require every candidate for employment to sign a comprehensive waiver. The waiver should give the employer or its agents express permission to check any of the information provided or contact any of the references listed. What should a comprehensive waiver say? Here's the one my company recommends (It is certainly not the only waiver that would serve the purpose.):
I hereby authorize (company name) and/or its agents to conduct such investigation of my application for employment as considered necessary. I authorize and request any and all former employers and/or business references to furnish information concerning my past job performance and work, salary, criminal and educational histories. I release from any liability the above named individuals furnishing such information. I recognize a photocopy of this authorization is a valid requisition. I understand that any false statements on my application are grounds for dismissal or withdrawal of any offer of employment.
Is It Foolproof?
No, but employers might think so. While it purports to release from all liability not only the prospective employer but also the folks who are contacted no matter what they say, it really does not. Why? Even the most well-written waiver does not give the prospective employer the right to be irresponsible when collecting preemployment information, nor does it allow former employers to be less than honest about former employees. For instance, even with waiver in hand, an employer could be held liable for basing an employment decision on age, race, sex, religion or national origin. A reference could be liable for intentionally and maliciously lying about the candidate. In other words, although the waiver may eliminate the prospect of an employer being accused of invasion of privacy, it will not protect either party from negligent hiring or the emerging charge of negligent referral.
However, getting a signed waiver is still an important step every employer should take at an early stage in the preemployment process. While it does not give employers carte blanche to slop through the reference-checking process at will, a well-written waiver will protect employers from being sued for invasion of privacy.