When you’re in the process of getting a new job, one important step that often comes up is the reference check. A potential employer may contact your previous workplaces to gather more information about you, which might make you wonder: What is HR allowed to ask from previous employers? What can be disclosed, and what remains confidential?
The answer includes both legal and ethical considerations. Employers have certain freedoms to ask questions during reference checks, but there are limits to what can be shared.
In this article, you’ll hear from HR and law employment experts who will outline the details of what an employer can ask a former employer, what information HR can give out, and what you can expect from the process.
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What a reference check is
Reference checks are a standard part of the hiring process. During a reference check, employers verify information about a job candidate by contacting their former employers, supervisors, or colleagues. The hiring employer will reaches out to the candidate's listed references to confirm details like employment history, job performance, work habits, and overall suitability for the position.
What questions can be asked of a former employer?
So, what is asked in a reference check? Here are some common questions that HR might ask your previous employer:
- Employment dates: “When did the employee work here?”
- Job title and responsibilities: “What position did they hold, and what were their primary duties?”
- Performance: “How well did they perform their tasks?”
- Reason for leaving: “Why did the employee leave? Was it voluntary or due to termination?”
- Rehire eligibility: “Would you rehire this employee?”
But there are limits to what an employer can ask a previous employer, from both a legal and ethical perspective.
Legal perspective
“Hiring managers can ask an applicant's former employer anything excluding their protected characteristics, like race, color, religion, sex, national origin, or age,” says Paul Koenigsberg, legal professional from Koenigsberg & Associates, with a Juris Doctor from Columbia University. “Outside of these categories, pretty much everything is fair game.”
What information can an ex-employer give out? A previous employer can provide feedback about your job performance, attendance, and attitude. But state laws may impose further restrictions. “For example, while New York does not have a specific statute regulating what employers can disclose during reference checks, common law principles around defamation apply,” Koenigsberg says. “Employers can be held liable if they provide false or misleading information that harms a former employee’s reputation.”
If a former employer knowingly gives false information about you, you could potentially take legal action. “We often joke that the U.S. is the land of lawsuits, and it's understandable that many employers would opt to withhold any information that could be used against them in court,” he says.
Ethical perspective
Ethically, what questions can employers ask previous employers? It’s generally recommended that they stick to professional topics during reference checks. It’s inappropriate to ask about personal matters like your health, family life, or social habits.
The amount of information that an ex-employer can give out varies, but from the ethical perspective, the information provided should be truthful and factual. For instance, they should avoid sharing opinions or subjective details that could unfairly influence a hiring decision. However, if you were terminated for serious misconduct, this could be disclosed if it's relevant to the job you’re applying for.
Reference check example
Here’s an example of a typical reference check between a hiring manager and a former employer, with typical questions to ask a previous employer about an employee:
Hiring Manager:
“Hello, my name is Sarah, and I’m calling from ABC Corporation. [Candidate's name] has applied for a position with us and has listed you as a reference. Do you have a few minutes to answer some questions?”
Former Employer:
“Sure, I’d be happy to help.”
HM:
“Great! Can you confirm [Candidate's name]’s dates of employment and their role at your company?”
FE:
“[Candidate's name] worked with us from June 2018 to March 2022 as a Marketing Specialist.”
HM:
“Thank you. How would you describe [Candidate's name]’s overall job performance during their time with your company?”
FE:
“They were a reliable and creative member of the team, consistently meeting deadlines and bringing fresh ideas to campaigns. Their attention to detail and ability to work independently stood out.”
HM:
“That’s good to hear. How did they work with their colleagues and supervisors?”
FE:
“They got along well with the team and were receptive to feedback from supervisors. [Candidate's name] had a positive attitude and was always willing to help others.”
HM:
“Would you consider rehiring them if given the opportunity?”
FE:
“Yes, absolutely. We were sad to see them go when they left to pursue a new opportunity.”
HM:
“Thanks for your time. This information has been really helpful!”
This type of reference check focuses on confirming employment details, evaluating job performance, and understanding the candidate’s work style and relationships.
Do job references have to be from previous employers?
While former employers are the most common references, other people you’ve worked closely with can provide valuable insights. Supervisors, team leads, or even colleagues can serve as strong references if they can speak to your professional skills and work ethic.
Employers are looking for reassurance that you can handle the job. “A strong reference can heavily influence hiring decisions,” says talent acquisition professional David Christensen. “Make sure your references are informed and consistent with your application.”
Can I say not to contact my previous employer?
Yes. If you’re concerned about what a previous employer might say, you can request that your potential employer not contact a previous employer and offer alternative references. However, be prepared to provide an explanation for your request.
If you're employed and don’t want your current boss to know that you’re interviewing, you can ask the potential employer not to contact them, says Kraig Kleeman, founder and CEO of The New Workforce. Most hiring managers understand that job searches can be sensitive, especially if your current employer is unaware of your plans to move on.
Keep in mind, though, that some companies may insist on contacting your most recent employer as part of their standard hiring process. In this case, it’s best to be upfront with the potential employer and have a plan in place if they need to reach out.
You can request that they delay contacting your current employer until a job offer is imminent or provide alternative references. This way, you maintain transparency while protecting your current position.
Can employers call previous employers without permission?
Legally, there is no requirement for employers to obtain your permission before contacting previous employers. However, in many jurisdictions with privacy protections, it is standard practice and ethically responsible to ask for your consent first. “In most cases, employers will seek your approval before reaching out to past employers, especially in industries where privacy is a concern,” Christensen says.
“There are some exceptions, such as industries requiring thorough background checks, where permission may not be explicitly required,” he says. “But even then, obtaining consent is still considered best practice.”
To avoid issues, be upfront in your application or interview about any preferences or restrictions regarding contacting former employers. If an employer contacts your previous workplaces without asking you, you might see it as a red flag. Job seekers are encouraged to ask about a company’s reference-checking process upfront so there are no surprises.
Bottom line
Whether you’re providing references or asking a potential employer not to contact a specific previous (or current!) employer, transparency and preparation are key. If you’re concerned about what a past employer might say, don’t hesitate to provide alternative references and be open with your potential employer. Remember, most companies are focused on finding the right fit and are willing to work with you.
FAQs
Can a previous employer refuse to provide a reference?
Yes, some employers have policies in place that limit the type of information they share. They may refuse to provide references or offer basic details like employment dates. This is often to avoid the risk of legal claims from former employees.
Can a bad reference stop you from getting a job?
Unfortunately, yes—a bad reference can negatively impact your chances of getting hired, especially in the case of a former employer sabotaging a new job. However, many companies take multiple references into account and may give you an opportunity to explain any concerns that arise.
How can I prepare for a reference check?
The best way to prepare is to choose references who will speak positively about your work and let them know in advance that they may be contacted. Be honest about your past job experiences and provide additional references if necessary. If you have concerns about what a previous employer might say, be proactive and explain the situation to the hiring manager.
Can I give false information of my past employers in a reference check?
No, providing false information about your past employers in a reference check is unethical and can have serious consequences. If an employer discovers that you lied, it could lead to the withdrawal of a job offer or immediate termination if you’re already hired. Additionally, it can damage your professional reputation and make it difficult to secure future employment.