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Hiring in the Dark: The Reference Sham

One of Santa Claus's primary tasks -- finding out who's been naughty and nice -- would be all but impossible if he had to carry it out in the everyday world. That's because fear of litigation currently prevents people from telling the truth about their peers, associates and employees. Reference checks have become a universal problem of bad checks.

The ramifications go far beyond St. Nick's target marketing, and far beyond added burdens for a business's human resources department. The problem affects all of us who fly on airplanes, or whose kids are cared for by non-family members, or who rely on other folks where job performance matters. In other words, it affects everyone.

The National Transportation Safety Board (NTSB) generated recent publicity with findings about last year's American Eagle crash near the Raleigh-Durham airport. Press reports suggested that many people at the pilot's former employer, another commuter carrier, were uncomfortable with his cockpit skills. But no one told American Eagle during reference checks. In NTSB's words, the prior employer's "standard response for employment history would not have included meaningful information on training and flight proficiency, despite the availability of such data." On board American Eagle, the captain had "failed to follow established procedures" on a flight in which he, his co-pilot and 13 passengers died.

Similar situations are rampant back on earth. A study of 571 sex offenders, funded by the National Institute of Mental Health, found that the typical offender molests an average of 117 children before being stopped. In part, that's because those who know don't tell. Only a tiny fraction of such cases reach a judicial conclusion with an available data trail. In many cases, parents who sound alarms about a teacher or coach or other care provider do succeed in having the alleged abuser removed from his or her job. But on the way out the door, the abuser is able to negotiate the nature of references to be given, or the situation is so messy that those who know what happened won't discuss it, giving no hint that questions -- even unresolved and unsubstantiated -- were raised. So the abuse continues with another unsuspecting employer in another town.

Many employers have adopted the NRSN approach-giving name-rank-serial-number-type information about former employees. Employers seeking to exercise reasonable due diligence must recognize that reference checks are no longer reliable indicators.

Optimally, employers called upon to provide reference information would conclude that telling the truth in good faith, even when it's labeled as personal opinion, is not against the law. In theory, unless you seek to "do in" someone, you face minimal risk of being "done in" yourself. But this sort of analysis can be dangerous, since former employers worry about being sued and having to defend themselves before unpredictable jurors.

Today a former employer has nothing to gain -- and possible litigation to lose -- by giving complete and full references. We would all be better off with carefully drafted legislation providing a safe harbor to protect those who furnish useful information in good faith at the specific request of a prospective new employer. But passage of such legislation hardly seems right around the corner.

Approaches that might be applied to one field or another are being considered. For example, NTSB voted recently to recommend that the Federal Aviation Administration require airlines to obtain "pertinent standardized pilot training and performance information." But the basic problem persists.

One option, when due diligence fails, is undue diligence. Perhaps Santa could determine who's naughty and nice by asking a reindeer to peek in your windows before he comes down the chimney. But many intelligence-gathering techniques have their own privacy pitfalls and raise the same specter of exposure to lawsuits that has chilled candor in reference checking.

So if you or your employer seek to hire someone, don't believe everything you hear. Or, more specifically, worry a lot about what you don't hear, particularly when your sources provide minimal information as a matter of policy.

The writer is a Washington management consultant.