Understanding What Former Employers Can Say During Background Checks

Your applicants’ former employers may be constrained in what they can and can’t say to hiring managers about the applicant in question. Let’s talk about these constraints so that you’re are asking targeted questions that will produce the most valuable answers to you, all without treading into sticky legal territory.

What’s At Stake?

The rule of thumb during any hiring process and background check is to tread carefully around the topics of age, race, sex, religion, national origin, sexual orientation, marital status, parental status, etc. These are protected classes and any hiring decision based on these statuses, especially negative decisions, will land you into hot water very quickly. What’s at stake is your reputation and your assets.

But What is the Law?

Free speech is also protected, but it is not absolute, according to Paul Barada of Monster.com, and the consequences of what you choose to say should be carefully considered. Barada asserts that while there are no laws restricting what prospective employers can ask an applicant’s previous employers, the legal consequences of any hiring decisions based on those answers are very real.

How to Play it Safe

Some companies create internal policies (not laws) that limit what supervisors or colleagues can say about former employees. For example, they may be limited to stating only, or confirming the employee’s job title and dates of employment, but Barada states that there aren’t any legal consequences if they said more, as long as what they say is TRUE. And it is Truth, preferably documented, that will ultimately save your skins.

Barada states, “…as long as a former employer offers honestly held opinions about a former employee or states a documented fact about that person, there’s not much a former employee can do about it.”


What has been your experience when talking to former employers? Do you find “no comment” policies valuable or informative? Share in the comments, and let us know if you have any questions about how to properly question former employers.

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