What Questions Can You Legally Ask a Job Reference?

Hiring the right employee can make or break a team. To get it right, employers often turn to references, hoping to gain insights into a candidate's work ethic, reliability, and compatibility with the role. However, it's important to be mindful of legal limitations when asking reference questions, as the wrong ones can land you in hot water.

In this guide, we'll cover everything you need to know about the legally permissible questions you can ask when checking job references. By understanding the boundaries, you’ll ensure you’re gathering valuable information while staying on the right side of the law.

The Basics: Why Employers Check References

Employers check references for a variety of reasons, such as:

• Verifying a candidate's employment history.
• Assessing the candidate's skills and experience.
• Understanding the candidate’s cultural fit within the team.
• Spotting any red flags that didn’t come up during the interview.

To do all this, it’s crucial that the reference-checking process is both thorough and compliant with employment laws.

What Are You Legally Allowed to Ask?

While the questions you can ask are vast, some topics are off-limits due to legal restrictions. Here's a breakdown of what you can (and cannot) ask a candidate's reference.

1. Questions Related to Job Performance and Responsibilities

You’re legally allowed to ask questions that pertain directly to the candidate’s job performance and experience in previous roles. For instance:

• "Can you confirm the candidate's job title and the dates of employment?"
• "What were the candidate’s primary responsibilities in their role?"
• "How did the candidate perform in their role?"
• "How did they handle deadlines, pressure, or challenges in the role?"

These questions allow you to assess the candidate's work history and qualifications without veering into prohibited territory.

2. Questions About Work Habits and Team Interaction

You can inquire about how the candidate interacts with their coworkers and how they contribute to the team dynamic:

• "How well did the candidate work with their team?"
• "Did the candidate display leadership skills or take initiative?"
• "Can you describe their communication style?"

This helps determine whether the candidate is a good fit for your organizational culture and working environment.

3. Attendance and Punctuality

You can ask about the candidate’s reliability in terms of attendance and punctuality. However, tread carefully to avoid straying into medical or disability-related issues, which can be a legal minefield.

• "Did the candidate regularly show up for work on time?"
• "Did they have any issues with absenteeism?"

Stick to factual questions about attendance rather than delving into the reasons behind it.

4. Eligibility for Rehire

A valuable question to ask a reference is whether they would rehire the candidate. The response can be very telling:

• "Would you rehire this person if given the opportunity?"
• "Why or why not?"

This provides insight into how the candidate was perceived by their previous employer and whether they left on good terms.

The Grey Areas: Questions to Avoid

There are several questions that fall into a grey area or should be avoided entirely, either due to legal restrictions or because they veer into inappropriate topics. Here’s what to avoid:

1. Questions About Protected Characteristics

Under U.S. law, questions about characteristics protected by the Equal Employment Opportunity Commission (EEOC) should never be asked, either directly or indirectly. This includes questions about:

• Race
• Religion
• Age
• Gender
• Disability
• Marital status
• Sexual orientation

For example, you cannot ask:

• "How old is the candidate?"
• "Is the candidate married?"
• "Does the candidate have any disabilities?"

Any question that could be seen as discriminatory based on these protected characteristics is off-limits and could result in legal repercussions for your company.

2. Salary History

In many states and jurisdictions, asking about a candidate’s previous salary history is prohibited. This is part of a growing effort to address wage gaps and pay equity. In places where these laws exist, you should avoid asking:

• "What was the candidate’s salary in their last role?"

Instead, you can ask about their salary expectations moving forward, which is a more appropriate line of questioning.

3. Personal Life or Off-Duty Conduct

It’s important to steer clear of questions about a candidate’s personal life or conduct outside of work unless it directly relates to the job. For example, you should not ask about:

• "What does the candidate do outside of work?"
• "Do they have a family?"

Focus on the candidate’s professional performance and avoid delving into personal matters.

What If the Reference Refuses to Answer?

There are times when a reference may refuse to answer certain questions. This is often because the employer has a policy in place to only confirm basic details such as employment dates and job titles. In such cases:

• Respect the reference’s boundaries.
• Stick to legally permissible questions.
• Focus on gathering the information you can, without pushing for more than they are comfortable providing.

When to Contact Legal Counsel

If you’re unsure about what questions are legally appropriate or if a candidate’s reference raises any red flags that could have legal implications, it may be wise to consult with a legal professional. Employment laws vary by state and country, so having legal guidance can help you navigate these complexities and ensure compliance.

How to Ensure You’re Staying Compliant

• Train your hiring managers: Make sure that anyone involved in the hiring process understands the legal boundaries when checking references. This can prevent well-meaning managers from accidentally asking an inappropriate or illegal question.
• Standardize your questions: Have a set of prepared, compliant questions that your team can use when conducting reference checks. This reduces the risk of inappropriate questions slipping into the conversation.
• Stay informed about local laws: Employment laws vary by location, so it’s crucial to be aware of the rules in your state or country. For example, some states in the U.S. have specific laws around salary history and background checks that you must follow.

A Hypothetical Example of Reference Questions Gone Wrong

Let’s look at a case where an employer, Jane, was hiring for a senior manager role. During a reference check, she asked one of the candidate's previous employers: "I noticed the candidate took a gap year a few years ago. Do you know if this was for medical reasons?"

This question immediately crossed a legal boundary, as it indirectly probed into the candidate's medical history—a protected characteristic under disability law. The former employer declined to answer, but Jane’s comment raised legal concerns, leading to a discrimination lawsuit later on.

Had Jane stuck to questions directly related to the candidate's job performance, she could have avoided this situation altogether.

In Conclusion

Checking references is a critical part of the hiring process, but it comes with legal responsibilities. By knowing what questions to ask—and more importantly, what to avoid—you can gain valuable insights while protecting your company from potential lawsuits.

Stick to questions about job performance, team interaction, and eligibility for rehire. Avoid personal, medical, or salary-related questions unless legally permissible in your area. And remember, if you’re ever unsure, it’s better to consult with a legal expert.

Following these guidelines will help ensure that you make informed hiring decisions while staying compliant with employment laws. Happy hiring!