This has been a topic I have wanted to discuss for some time. Are backdoor reference checks morally right or even legal?”
“Sssshhh”, I hear the hiring managers say. “It’s our prerogative”. No one ever talks about it, but most of our clients do it. Sometimes it works in your favour, sometimes it doesn't. And when it goes wrong, it really goes wrong.
It’s the recruitment industry’s dirty little secret.
Backdoor reference checks are colloquially known as informal checks, quiet checks or deep reference checks. I like to call them cheeky checks. Anyone who has ever hired someone is guilty of it.
“Cheeky checks are when you or your client decide to contact someone not listed as a referee and generally, it's done without the consent of the candidate.”
Just the other day I was chatting with one of my colleagues, who mentioned that one of her clients did a cheeky check with the candidate's current employer. As a result, the candidate's colleagues began asking him why he is leaving, much to the candidate's dismay. He was pissed, and rightfully so. He made his feelings clear, even if he was to be made an offer he would not accept. Trust has been broken.
We are in the information age, and we are constantly looking at ways to be more informed. Let’s get real, it's been happening for aeons. And it will continue to happen in the future. But should it? Voluntarily or involuntarily our job is to dig for information, which goes on to shape our view and opinion on a candidate. And that information carry’s more weight when it comes from someone we trust. Some people view the traditional reference check as irrelevant, as its provided by the candidate and is likely to result in posiive feedback.
Here's the interesting thing, LinkedIn has built this into their platform. Available on The Recruiter product you are only one click away from connecting with someone that can shed more light on whether the candidate is good or not. Very naughty indeed.
When assessing back door referees, there are a number of questions that need to be asked to determine validity:
- Is the referee credible?
- Is the referee relevant to the position sought after?
- What is the relationship of the candidate to the referee, if any?
- What is the context and exposure the referee has in relation to the candidate?
- Are there any hidden agendas?
Don’t get me wrong, I think it’s important to look at more than one data point. The issue is, often the hiring decision is being assessed using multiple sets of data gathered from various sources; multi-stage interviews, tests, formal reference checks and of course intuition or gut instinct. Despite gathering all of this data, often a hiring manager will make an inquiry with a trusted person or someone they know to do a “cheeky check”. If that comes back negative then all that prior work is cast as irrelevant. This is, at the very least, sloppy, and at worst, dangerous.
As a recruiter, we are powerless to do anything about “cheeky” checks. Occasionally recruiters are even unaware it has happened. We have no idea what was discussed or how it was conducted. If it's good, we may never find out. But we definitely know when it’s bad. And if it blows up recruiters are left to clean up the mess.
So are “cheeky checks” legal?
The answer was a little bit of yes and no! I did a shallow dive into the The Privacy Act 1988 and, after what seemed to be an eternity I resurfaced after nearly drowning in boredom. The Act deals with how personal information about an individual can be collected, used and disclosed, and also sets out the Australian Privacy Principles. The APPs apply to all Australian organisations and prevent the disclosure of personal information without consent.
There are exceptions under the law with regards to information that relates directly to the employment relationship. This means is that if a referee is contacted it will not be a breach of Australian privacy laws to provide that person with information relating directly to a past or present employee.
This is not to say you can disclose whatever you want because that person is or was an employee. A wise person would do well to steer clear of discussing anything of a personal nature. Your remarks should be kept to the employment relationship, which includes such things as the length of the employee’s service, the skills of the employee and their conduct at work.
So in a nutshell, there are definitely some dangers with performing cheeky checks, which include being accused of defamation, misrepresentation or an invasion of privacy. A candidate could raise legal action if information provided by a referee was proven to be defamatory or invaded their privacy.
Applying what I’ve learnt, here are some rules I think should serve as benchmark principals to reference checking (cheeky or formal).
- Never reference check without consent
- Do not discuss anything of a personal nature or seek to find out information that can discriminate
- Never, ever undertake cheeky checks with the candidate’s current employer
- Always seek & consider the context of a cheeky check
- When you get negative feedback ensure you still consider all other information gathered on the candidate to make a well-rounded decision.
- Dig Deep on points of interest, especially if they are negative