Legal Notes: Employee Reference Check Policies

Spring 2021

By Megan Mann

Megan Mann, NAIS legal counsel and vice president of government relations, hears from NAIS member schools across the country on a daily basis. Here’s what’s on their minds now, what schools need to know, and questions they need to consider

Before we bring someone into our community—who we trust with our students and other community members, who we choose to represent the school—we have an opportunity to learn more about them from their previous employers. But many schools don't follow their own reference check policies. And from a risk management standpoint, this is a glaring error.

Schools should regularly review the school’s hiring practices. When reviewing protocols, specifically:
  1. Talk to the employees charged with carrying out reference checks to ensure that reference protocols are consistently applied throughout the school. 
  2. If there is an inconsistency, try to understand why. Assess whether that's reasonable or should be changed. 
  3. Once the school has identified protocols, ask hiring managers if they are using them.
Gathering this information should help a school determine if a new policy is needed, enhanced communication or coordination would help bolster the policy, or employee training is the answer.

Even simple, small alterations can greatly improve a reference check policy. For example, schools should consider using a form on which they document who was called, when, and whether a response was received. All too often, a call is placed, a voicemail is left, and no connection is made. Outreach does not constitute a reference check.

Consider the relationship the reference has to the prospective employee. It’s a red flag when a prospective employee only has familial character references, for example, and no professional ones. If the employee is unwilling to list a supervisor, it is OK to ask why. Perhaps they are a new teacher, so they only have one supervisor (their current one). Understanding the reasoning behind certain reference choices may help paint a fuller picture.

It's never too late to complete reference checks. A school may ask a candidate to provide the name of their current supervisor but only call that supervisor (or head of school) after the employee has been hired. In these situations, the school has contacted the other references, has decided against contacting the current employer (for now), and wants to do its due diligence.   

Ultimately, as the gateway to the school, hiring practices should be taken very seriously. So, be sure to do more than simply “check the box” when it comes to reference checks.  
 
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Megan Mann

Megan Mann is general counsel and vice president of legal education and support at NAIS.