employer wants permission to call people outside my reference list

by Alison Green on March 17, 2011

A reader writes:

I recently was asked to sign a Consent to Reference Check form.  Paragraph one was fairly standard:

“I, XXX, authorize XXX Company to contact the persons and/or organizations listed below for the purposes of obtaining employment reference information including information contained in my personnel file and hereby authorize those persons and/or organizations to disclose such information.”

OK, well, I was a bit concerned by the “info in my personnel file” part because I had never seen that specified on such a form before. But since none of my regular references were still with the same companies, they had no access to any possible actual “personnel files” so I was OK with it.  In addition, this could be interpreted as standard factual information such as the period of time I worked there, etc.  Fine.

The next paragraph threw me for a loop (emphasis mine):

“In addition, I hereby authorize XXX Company to contact any employers listed on my application and/or any other employer of which the XXX Company becomes aware during the course of the candidate selection process or reference check for the purposes of obtaining employment reference information including information contained in my personnel file and hereby authorize those persons and/or organizations to disclose such information.”

Well, I did not consent to this paragraph and, of course, now fear my chances for getting this job are in jeopardy because of it.  I understand people can give bad references as long as what they say is TRUE, i.e. not slanderous/libelous.  But, first of all, as any job-seeker does, I choose my references carefully, using only former supervisors who have agreed to and are able to speak to my duties.   I check in with my references regularly when job-seeking to make sure they are still on board and to keep them updated.   Like you’re supposed to!!

I have never seen a notation on a Consent to Check References which essentially allows an organization to contact anyone they know about or, essentially “find out about” without limits and I was very uncomfortable with this.  In addition, people come and go from companies, especially those with a lot of volunteers – if given carte blanche, what would stop a reference-checker from calling a company I worked for YEARS ago, talking to whomever was willing to talk with them, regardless of my relationship with them??  Maybe I did not ask them because they could not provide a great recommendation or don’t want to.  Maybe they have a personal beef with me.  Maybe they don’t know me but say they do.  Maybe they’re kooky.  I  have no idea of the suitability of any random person to provide information about me whom the potential employer may happen to contact. THAT’S WHY THEY ASK FOR REFERENCES AND I SELECT THEM CAREFULLY, NO???   Being a reference for someone is serious business.

Anyway, I assume asking for consent to call anyone, anytime is technically not illegal as long as I agree with it in writing, blah, blah, blah.  But it’s a no-win situation – if I agree, I have no control over who they call and what that person says.  If I don’t agree, it can send up red flags about me as a candidate in a tough job market.  Help!

Actually, in most states it’s perfectly legal even if they don’t get your consent in writing. In fact, in most states, you don’t need written consent to check references, period. Companies that ask you to sign a release are doing that not because the law requires it, but because those kinds of precautions make their lawyers happy in case at some point someone sues over something where a reference is involved.

Moreover, good reference-checkers will go beyond the list of references you provide them with, for precisely the reason you identified — because they want to talk to someone other than the people you’ve identified as sure to say great things about you. Prospective employers can call anyone you’ve worked for or who might know you and ask about your performance. They aren’t limited to the list you provide them with.

Now, the law does require that those former employers act in “good faith” when providing a reference, meaning that it’s illegal for them to knowingly provide false or misleading information or to act with malice in giving the reference. But it certainly lets them speak about your performance. (Again, in most states.)

I wouldn’t freak out about this too much, since (a) most reference-checkers for most jobs aren’t all that thorough (although they should be), and (b) this can be happening informally without you even realizing it anyway.  Say you apply for a job with me and I see that you used to work with my good friend — or even my current colleague. She’s not on your reference list, but I trust her opinion, so of course I’m going to ask her what her experience with you was like. Would you really expect that I wouldn’t?

Anyway, in sum: Not unusual, not illegal, and from the employer’s side, practical.

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{ 36 comments }

{ 36 comments… read them below }

  1. Rachel - Former HR Blogger*

    I would not be surprised if you not consenting hurt your chances with this job. It makes you look like you have something to hide or that you’re going to be a difficult person to deal with. This would be a huge red flag for me.

    At my workplace, we have prospective employees sign the background check approval form when they interview (so that we don’t have to go back and get it later). On the form it asks for SSN. About once a year someone calls and tells me they’re not comfortable putting their SSN down. I tell them that I understand, and they can turn it in without the SSN and should we proceed further with them and need it we’ll get it then. The conversation never ends there. They always proceed to keep explaining to me why they cannot put their SSN down while I keep assuring them that it’s okay. They go on far further than necessary and illustrate that they’re going to be difficult to deal with if I decide to hire them.

    1. Julie*

      As I understand it, SSN in the States is the equivalent of SIN (social insurance number) in Canada. I will only ever give out my SIN if someone is actually hiring me. Usually, it’s as simple as that. Me: “Can I hand in this form without my SIN until such a time as you’d be ready to offer me a job?” Company: “Sure.”

      And that’s pretty much it. Hopefully this helps show that we’re not *all* difficult to work with!

    2. Anonymous*

      @rachel why not just change the form? If this is information you don’t immediately need, by your own admission, you probably shouldn’t attempt to collect it. I would venture to say that those difficult potential hires may be the smarter ones of the lot — they are thinking through your office procedures already. (why collect this info? what will you do with it? how will it be stored? disposed of?)

      Okay yeah, I’m in IT. You got me. But I can read your email. :)

      1. Anonymous*

        Okay yeah, I’m in IT. You got me. But I can read your email. :)

        Moreover, you can retroactively change the contents of the emails ;-)

      3. Jamie*

        I was thinking the exact same thing – I’d hire the person who was smart enough balk at giving up their SSN for no other reason but illogical office procedures.

        I am also in IT…and I guessed you were as well before you confirmed it!

      4. Natalie*

        I recently came across some old files in my office that included SSNs. The SSN wasn’t necessary by any stretch of the imagination (they were parking stall records) but someone had collected them 15 years ago for some reason and they had sat in our office since then. No one even knew we had a bunch of SSNs (attached to names and employers) by the time I was purging the files.

    3. Charles*

      “It makes you look like you have something to hide or that you’re going to be a difficult person to deal with. This would be a huge red flag for me. “

      Hmm, wasn’t there a AAM post just a little while ago about a former employer who the OP was afraid was going to screw her over because she had the nerve to leave his company?

      I would really like know what current managers think about that – have you ever seen this happen, or do you ALWAYS assume that the employee is the problem, and never see a “crazy” manager for what he is – crazy.

      1. Anonymous*

        Yes, I too would like to know why there always seems to be an assumption that if a bad reference is given that it must be the employee and not a manager or coworker? And what recourse does a former employee have when negative and slanderous subjective feelings are stated as fact?

      2. Ask a Manager* Post author

        Personally, I’m super aware that there are lots of crazy managers out there. In a situation like this, I’d want to hear how the candidate talks about it — do they sound calm, rational, and sane, or do they sound bitter and hyped up? Also, depending on the context, I might want to talk to a few more references than normal, to try to get a broader picture of the person. I’m very willing to believe that they’ve got one crazy reference, but if they have several, that would be a real concern.

        1. Anonymous*

          Dear “Ask A Manager”;
          I am in a situation similar to what you have described, but am not sure what to do. My former boss is not crazy; just very vindictive and overcritical and unsupportive. I had to resign before securing another job, because things were affecting my children’s well being. Since then, he has made a big deal of something I was unable to do because he had not given me the basic resources needed to do it (everyone else had adequate resources).
          All prospective employees call him as my most recent boss, and all my job trails go cold at the reference check level. A formal “reference check” revealed that he has been misrepresenting the truth about what I could not do (for above reasons) without making any mention of the lack of resources. So, I am losing one job opportunity after another. I don’t know what to do…

      3. Rachel - Former HR Blogger*

        I see this as a different issue completely. If you know that someone is going to unjustifiably say negative things about you then you should be upfront about it with the company you’re applying for, not just caret blanche “refusing” to let them contact anyone outside of your listed references.

    4. Working Now*

      On the subject of giving out our SSN: I’ve worked in offices for more than 40 years. People come and go, and I’ve seen lots of temps working in HR (Personnel). They have access to everyone’s personal information. Who knows what they do with it? There was a huge incident a few months ago, where people’s personal information was stolen and sold.

      I won’t give out my SSN so freely any more, and Rachel, I am not a difficult person. I wouldn’t keep rambling on and on, but you know, you shouldn’t automatically assume that people who do that are difficult. They’re nervous – because they don’t want to be considered difficult. Job hunting is hell, and knowing that HR people are looking more for reasons to disqualify candidates than qualify candidates makes job hunters nervous. We all know you’re looking for any excuse to toss our resumes, but we do have to try to protect our identities nowadays.

      1. Rachel - Former HR Blogger*

        Like I said, it’s not the fact that they don’t want to give it out. I’m find with that. It’s the fact that when I tell them I’m fine with it, they do not listen. Instead they ramble on about their thoughts and feelings.

        1. anonymous*

          They have random drug screens at my husbands work. They used to have a lab that would bring in a truck, pull a few names randomly for the test and do it on site.
          Then they switched to pulling the names and having the employees drive over to the next town to go to the lab, company vehicles on company time, etc. That was the first time he ever saw the form for the lab order. It had his SSN printed right on it and he threw a fit. He explained his position to the CEO on having his SSN used in places it wasn’t warranted. It’s a small company, everyone knows everyone. The lab can establish identity through photo ID that doesn’t include the SSN, they aren’t billing the employees health insurance. It shouldn’t be included on the form. They took it off and stopped putting it on the form at all.

          Many years ago our state decided it was good idea to use a person’s SSN for their driver’s license, they have since changed back to using another number. My husband’s license never included his SSN because he refused to give it to the DMV 40+ years ago.

          A few years ago I found out we could pull our own Lexis-Nexis report for free so we sent for them. We found out his SSN is shared by two other people, one a woman’s name and one a man’s name, both people are 2 years older than he. So far, we’ve seen no evidence that their social security records have ever been mixed up with his, but it is not always a unique number and it is not suitable for identification.

  2. Interviewer*

    I know most of my counterparts at other companies in my industry, and if I get a candidate who previously worked for one of them, you can bet I’ll pick up the phone to find out some scoop. That’s my first call.

    I’ve made tons of these non-list calls for references on candidates. They don’t go to random people, ever. The person answering the phone who hears what I need will forward all of these calls to HR or the requested supervisor. More often than not, if I don’t know the person I’m calling, I’m told they aren’t allowed to do anything except confirm dates of previous employment. I have also left many voicemails that don’t get returned. I have never had anyone act “kooky” or claim to know a candidate when they didn’t or take the call if this wasn’t their area to handle. I am not sure what your fear is based on here. But reading between the lines, it sounds like you are very worried you may have a bad reference from a previous employer if they do call non-list references. It may be too late to salvage this particular opening by balking at the consent form (at best, you will be scrutinized with a fine tooth comb for saying something about it).

    In future, if it gets to the reference checking stage (generally after an interview goes well) – you might want to address the topic up front with the recruiter, if not in the interview itself. Be honest about what happened (why you would get a bad reference if they call that employer directly) and what you’ve learned about yourself, and especially how you would handle that situation if it ever came up again. Come up with a good, concise explanation and practice it over and over until you can say it without fumbling around.

    Good luck to you.

  3. SME*

    It seems like there are a lot of companies that won’t give any details beyond confirming employment and eligibility for re-hire when responding to a reference check, anyway. Maybe another reason not to worry too much about signing the form?

    1. Chris*

      Very true. There are some companies where I have worked where management was not allowed to give out references. They were to refer them to HR and that is the end of it. HR will just confirm dates.

  4. Amy*

    Not everyone chooses their references carefully. I once called someone on a candidate’s list and asked how he knew the applicant. His response: “She’s my fiancee!” and proceeded to launch into all the reasons why he loved her. I felt kind of bad for the guy, who clearly had no idea why he shouldn’t have been a reference for her, so I let him ramble for a minute or two and then thanked him and hung up. Made me question her judgment, though – this was not her first job (and even it it was she should have known better). This was a case where we had to go outside her list to find out the scoop.

    1. Ask a Manager* Post author

      This is so true. I’ve also called references that were from a candidate’s list and received pretty unflattering reports. So I agree — not everyone chooses them carefully!

    2. Rachel - Former HR Blogger*

      Exactly. I had one recently that had told me one former employer would not say great things. Fine, he was upfront. When I called his “professional” references I found out that they were all family members he had never worked with before. So, I on my own started calling former supervisors (other than the one he told me would be bad), what a surprise, those former supervisors did not have anything nice to say.

  5. Cruella*

    I’ve been bit by this one before. The “carefully chosen” references gave a glowing review of a candidate and this person was hired. Only later, working a trade show with this person, did I run into an aquaintance who mentioned to me that they had worked with this person at the candidate’s previous job (having left just a few months before the interview but not listing it at all on the application). I was given an overall opinion of the candidate’s performance at that position, including some issues that had caused a serious problem for that company.

    Needless to say I was blindsided then, but was not at all surprised by what happended next. Before too long, those same issues came to light at our company as well, and despite several attempts to counsel and assist this person, we had to let them go.

    One could be the best candidate hands down, but if I saw that someone wouldn’t consent, my first thought would be “What is this person hiding?” That would also weigh into my considerations.

  6. Kris*

    I have been told on more than one occasion with different employer’s people outside of my reference list were called. In every instance this was told to me way after I had gotten the job and settled in. For example, a former supervisor said in causal convo oh yea I called so-n-so at XYZ company and asked about you, she is an old pal of mine. Or in a recent interview I mentioned working at ABC company and the guy I interviewed said oh yeah I know so-n-so who works there I am going to call him and ask him about you.

    This happens all the time informally whether you consent or not and I thought it was the norm to reasonably expect people to do so. Especially if you are hopping around in the same industry, people know each other and people LOVE to talk. I was never under the assumption that only the references I provided were the only ones being checked.

  7. JaneA*

    Would it be considered odd to say something like: “Don’t contact X for a reference. She tends to talk to all and sundry and it might get back to my boss.”

    I have a few folk in my life to whom I won’t give information unless I’m happy with it being on the front/home page of the local paper.

  8. Liz*

    You know, if the problem of reference checking is this big, there are a lot of law school graduates in the employment market (due to the technology-related contraction of the legal services sector) and they’ve ALL been checked and rechecked very thoroughly by their law school, the non-profit testing services, the bar committee, and so on.

    To get a bar license, you have to submit records for every job since the age of 18, and then most states call references for every job. There are also driving record checks, credit checks, and peer interviews to survive the “character and fitness review.”

    If as an employer, you don’t have the resources to do this extensive of a background check, then you might try grabbing a JD holder, if one applies. I know there are a lot of them out there looking for work, and just to get the JD, they had to submit to a review of their parking tickets.

    1. Ask a Manager* Post author

      It would depend on whether you were looking for a background check or for substantive references. When I check references, I’m looking for nuanced information about strengths and weaknesses and specifics related to the skills I’m seeking, which is different from a general background check.

  9. Liz*

    That makes sense =) I do wish there was more awareness of what law school graduates can do for non-legal employers. The legal industry is shrinking fast, and I hate to see people with so much training and motivation be sidelined.

  10. Anonymous*

    I usually notify the 2 or 3 people on my reference list before employers call just to give them a heads up, but what I don’t get is, if employers are calling people outside my reference list without my knowledge, wouldn’t it look bad on me if I did not notify those people too?

    1. Ask a Manager* Post author

      No, they’ll usually make it clear if they’re calling because you listed them, or if they’re calling because they saw the company on your resume.

  11. Anonymous*

    um excuse me.. just how exactly are you going to get the phone numbers of people I don’t even associate with to call and get a reference from? Are you only calling employers listed? Or are you going through my high school year book, and then preforming detective work to get their numbers and call them? And why in the world would you trust the words from somebody neither I nor you know? Your friend.. sure I get that. But calling some random person, I don’t associate with and didn’t work with and expecting that anything they say is true? And how do you know, if you’re following a company rabbit hole that the person you just randomly got ahold of is even trusted in their OWN company to trust what they say?

    1. Ask a Manager* Post author

      They’re getting the names of the companies from your resume. And companies as a general rule direct reference calls to the appropriate person to handle them.

  12. Anonymous*

    I have worked for two companies in the last 15 years. Would a potential employer check a reference from a company I worked at prior to the last 15 years? It seems ridiculous to me that they would check that far back, because in all likelihood, the people I worked with would probably no longer be there.

  13. Wally*

    I recently went through an interview process for a new seasonal job, just on the side for some extra Christmas spending money. When I filled out their application for I checked the box that said “I do not give permission to contact my current employer” and I explained to the interviewers that I can not afford to allow this seasonal job to come into conflict with my full-time job.

    You can imagine my shock and dispair when I got a call from my Manager to tell me that he had been contacted for a reference, worried that I was going to quit. He was in better spirits once I explained the situation but then, afterwards, expressed how disgusting & unethical it was for them to call him without asking me.

    The question is: If this had cost me my full-time job would I have had any cause for legal action against either company?

    1. Ask a Manager* Post author

      Possibly — there’s a legal concept called tortious interference, which is a legal violation related to intentionally damaging someone’s business relationships. The theory here would be that the prospective employer interfered with your employment, knowing that they were being reckless or negligent in their behavior. That said, cases like this take a long time, are expensive, and can be energy drains, so it’s generally not an easy fix.

      However, that employer was totally in the wrong. Here’s a similar post: https://www.askamanager.org/2008/07/prospective-employer-called-current.html

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