BACKGROUND AND REFERENCE CHECKING:  9 QUESTIONS TO ASK + WHAT YOU CAN AND CANNOT DO – OR ASK – UNDER NZ LAW

I’m your host – Julie South – today we’re looking at background and reference checking:

• why you should do it – even when you think you can’t spare the time,
• what questions to ask,
• what answers might raise some red flags,
• what to do with those red flags, and
• what you can and cannot do in relation to reference checking and NZ law

In Godzone Aotearoa New Zealand there are some things you absolutely cannot do in relation to background and reference checking potential new recruits and things you absolutely must do.

Reference checking is protected and/or governed by three different Acts of Parliament:

• the Employment Relations Act 2000,
• the Human Rights Act 1993, and
• the Privacy Act 2020

We’ll take an in depth look at the nine reference check questions I always ask every referee.  I’ll explain what types of answers or responses raise red flags and then how I handle those.

I’ll explain why I ask the questions I do, what reference check bias is and how to avoid it, and how I accuracy-check some of the answers I’m given from referees.

I’ll also explain why a ‘no’ to the question “would you hire this person again” might not be the deal breaker you expect it would be.

We’ll also quickly look at some reference checking that’s fallen foul of the law and ended up in court.

Reference checking.  Yes, I know it can take a long time.

Yes, I know you’re busy.

Yes, I know the candidate was charming – otherwise you wouldn’t have gotten this far

Yes – you want them starting today, but yesterday would have been even better

Yup – I get all of that!

I’m with you.  Especially when you’re racing the clock and really, they were absolutely charming.

But seriously, failing to reference check new employees means you’re playing a game of Russian Roulette.  Are you that brave (or stupid)?

And when it comes to reference checking, asking the wrong people can land you in hot water and failing to ask the right questions can leave your clinic vulnerable and at risk.

I’ve heard a few “hiring regret” stories, mostly because the job seeker was positively charming and it was decided they didn’t need to run reference checks.

I cringe every time I hear an employee has been hired without reference checks being done ahead of the job offer OR a job offer has been made without satisfactory reference checks being done.

Yes, it takes time.

Yes, you’re busy.

Yes, the candidate was charming.

Yes, you want the person starting today.

Yes, it’s tempting to skip this important recruitment step.

But please! Always, always, always take the time.  Even for ‘just’ a one-day locum.

If you’re ever tempted to skip the reference check stage – perhaps because it’s “just” for a one-day locum assignment – REMEMBER THAT YOUR CLINIC’S REPUTATION IS AT STAKE!

The questions you ask (or don’t ask) in a reference check could come back to haunt or bite you.

Reputations are at stake.

You and your clinic have worked hard to earn your great reputations – excellent reputations that can be damaged in with one bad hire because reference & background checking was considered unnecessary.

Reference checking is one thing I absolutely dig my heels in about with clients.

I’ve been told – often – not to worry about reference checking because no one is going to provide a referee who’s going to give a bum reference, so what’s the point?

The point is you need to know what questions to ask of whom and what red flags to watch out for from the answers you receive.

I said earlier that you and your clinic have worked hard to earn your great reputations.

I’ve worked hard to earn mine as well.  I like to think I have a good reputation within the veterinary industry – for being honest and having integrity that means I’ll always do the right thing.  I’m not going to jeopardise or squander all that hard work by failing to reference check VetStaff’s candidates to the clients we work hard to please.

I hope you’re not prepared to risk your or your clinic’s reputations either.

So please, check everyone with no exceptions: locums / temps / contractors / permanent hires

I recommend you have different types of questions depending on the position you’re filling.

By this I mean that it’s highly unlikely, for example, that you’ll need to know what a practice manager’s clinical or surgical skills are like.  But for nurses and veterinarians those types of questions need to be asked.

Similarly, some roles are client facing, some aren’t.

However, in saying that, I want to differentiate between internal and external clients because I know some managers – rightly so – work on the principle that all positions in an organisation must be client focussed.  And that’s true.  But for the sake of clarity here, I separate “clients” – which are external from “teams” which are internal.

Therefore, I always ask all referees team-based questions about the candidate.  But only those candidates whose positions that have direct interaction with a clinic’s clients are asked the client-based questions.

Here at VetStaff we start our reference check process online – I’ve coded a form into the backend of VetStaff’s website that, even if I may say so myself, is pretty sophisticated.

It has ‘branching’ type questions – depending on how one question is answered affects which question that leads to next.

If any answers leave me with more questions, then I’ll get in touch with the referee and ask for elaboration.

If you’re asking the questions “in person” – ie, not online or digitally – then you’ll need to allow an uninterrupted 45-60 minutes/referee.

I always give referees’ the choice – to answer online or for us to do this over the phone.  I let them know I’ll need between three-quarters and an hour of their time.

When referees want to do it over the phone, I complete the answers on our reference check for them and send them a copy for their records.

For each applicant – always each of their referees the same questions and guarantee them 100% confidentiality in relation to the applicant.  Reassure the referee that the job-seeker is not going to know what was said about them by anyone.

Once I was reference checking a candidate who was absolutely charming.  It was one of those situations where the clinic told me ‘not to worry’ about reference checking.   I dug my heels in.  We were about to make the job offer.

The clinic was worried the applicant would get a better offer and they’d miss out.

Of course, it’s always possible – especially if the applicant hasn’t been 100% upfront with you that they are actively applying for other positions.

The clinic and I compromised – we made the job offer subject to satisfactory reference checks being obtained.  As well as not wanting to miss out on this particular applicant, they were panicking because the incumbent was leaving in a fortnight and they wanted the appointee to start ASAP.

The practice manager wasn’t particularly happy with our compromise but agreed anyway – telling me that she looked forward to being able to say “I told you so” later.

As you’ll hear when we go through the questions we ask referees, one of my always-ask questions is around lateness and absenteeism.

What the reference checking uncovered was that our applicant always ended up using up all their sick leave and then had to take more sick leave without pay each year.  It turns out they had a medical condition they never told us about that would have been made much worse by working in the fast-paced, high stress world of this particular veterinary clinic.

Because the applicant’s health & safety would have been at risk / compromised, we had to rescind the job offer on the grounds of health & safety.  I shudder to imagine how that could have turned out if we hadn’t uncovered this when we did.  It would’ve resulted in lots of heartache and grief for both the clinic and their new employee.

As you can see, doing reference checks aren’t necessarily about uncovering poor performance – other things can come to light as well, that could put the applicant at risk.

If you’re going the manual-over-the-phone method of reference checking, then make sure you pre-print your questions ahead of time with enough space for your handwriting.

You want reference checks from the person’s immediate manager.  If it’s not public knowledge your candidate is looking for their next professional move, then ask for their former manager.

How they respond to you requesting another direct-report manager’s name is important.

For me, when someone’s a bit cagey or slow in getting details to me, the first red flag has been raised – in my head – I’m wondering IS THERE A PROBLEM HERE or is life just getting in the way?

Whilst most reference check questions will be open ended, there are a few yes/no, A/B, this/that type questions you must always ask.  Once you have the Y/N A/B answer, then ask for elaboration.

In addition to technical competency questions – which we have separate always-evolving questionnaires for – here are my 9 must ask questions of referees that are black and white, clear-cut type questions.

They reveal a lot, will start alarm bells ringing if there’s due cause and will provide the opportunity for you to fact-check against an applicant’s CV.  These are in no order of priority:

#1 – What dates / period did the applicant work for you?

If they’re unable to give dates (not everyone knows when people started / finished working at a company) then ask them to give you a rough timeframe.  If dates / durations don’t line up with what the job-seeker told you, ask the candidate’s permission for you to request a certificate of service with their former employer.  If they deny this request, and you want to continue with the applicant, then keep asking “why?” until you’re satisfied with their answer.

#2 – Would you hire this candidate again?

If the answer to this question is anything other than affirmative, you want to know why.    Why wouldn’t they take them back?   Keep asking open ended questions until you’re absolutely satisfied you can live – or not – with the reason why not.

In most cases, you’d expect when a former manager said they wouldn’t re-hire again that you wouldn’t want this person on your team either.  But keep asking questions because you might find out the reason for the ‘no’ is something you can live with.

For example, I know one practice manager who, out of principle, won’t rehire former team members.  It’s got nothing to do with the performance or otherwise of the person concerned and just because that’s a rule he lives by.  His personal philosophy is to “never go back” and, in his opinion, rehiring a former team member is a backwards step, not forwards.  Therefore he’ll never rehire – it’s about him, not your next new-hire.

#3 – Have you ever had reason to doubt the candidate’s integrity, honesty, professionalism, ability, skills?

This time you’re looking for a negative answer – NO – they’ve had no reason to question the person.  If they have, you want to know what happened, how that came about and what the outcome was.

#4 – Were there any issues or concerns such as lateness or absenteeism?

I mentioned earlier an example of where this question revealed a serious medical condition the candidate had failed to mention – even though opportunity was given.   You’d be surprised at just how revealing answers to this question can be.  It’s pretty good at revealing high usage of sick leave or lack of time management skills.

#5 – What type of management or leadership style does the candidate respond to best?

Once you know the answer to this you can reassess whether the new hire will fit with the manager they’re going to be reporting to.  If your manager is a micro manager and the new hire works best with lots of freedom, then that could cause some tension after a while.  Are you ready for this?  Can you handle that?

#6 – Why did they leave?

Does this answer match what the candidate told you?  If not, why not?  Where’s the discrepancy?  Who’s telling the truth, or who hasn’t told the whole truth?

#7 – What were their responsibilities?

Does this sound right to you?  Does it match what they told you / what you knew?   Has the candidate over- or under-sold themselves?

Why might someone want to undersell themselves? 

Situations could be – especially in today’s market where some people have been made pandemic-redundant – is because they don’t want you to see them as being over-qualified for the job because you think they’ll get bored and leave; or that they’re looking for any job – so they’ve GOT a job – while they look for the one they want… because it’s easier to find a job when you’ve got one to start with.

#8 – Would you describe them as a PROACTIVE or PLACEHOLDER employee?

I use this question to identify whether – in the case of client-facing roles like veterinarians & nurses that they’re proactive (or not) about booking in client follow up appointments / procedures.

Or do they have the attitude that the next vet can deal with that problem on their next visit?

In relation to admin & back office type roles, this question helps tweakw out whether they helped the team and/or clinic grow and expand.  Or did they just do their job and collect their pay each fortnight without adding any kind of value at all.

#9 – Who else would you recommend I speak with about [candidate]?

This question can be very enlightening – especially if the candidate denies you permission to speak with that person.  Which I’ve encountered before.

Just so you know, NZ privacy laws prohibit you from seeking a reference without the person’s consent.  This means if you’re given another name to this question, you must first ask the candidate their permission to talk with this second person about them.  If they decline, ask why?  Are you okay with their answer?

NZs applicable laws

Keeping the Privacy Act 1993 front and foremost in your mind when you’re making reference checks is a good idea, because this can come back to bite you in a big way if you fall foul of it.

The Privacy Act 1993 means you must make sure that the information you’re collecting doesn’t intrude unreasonably on the applicant’s personal affairs.

You must take care with any pre-employment health screening, for example, you can’t use this to discriminate against applicants with a disability (where this is not a listed exception in the Human Rights Act 1993).

The information you are requiring must be relevant to the proper and safe performance of the job and, if your decision is to not hire, you must be able to prove it was because of health and safety reasons, not discrimination on other grounds.

Also, under the Privacy Act, authorisation from the job applicant is required to access or release personal information about them.

Accordingly, the person seeking the reference must have the authority of the applicant to do so. In providing this authorisation, the candidate must also be informed as to the nature of the information being sought, and the use to which it will be put.

What if an applicant didn’t get the job, and they’re worried their referees let them down? What are their rights if they want to know what a referee said about them? Or, what if you’re an agency – like VetStaff – or a practice manager and you want to protect a referee from a disgruntled applicant who might be threatening to sue?

Principle 6 – Privacy Act

Under principle 6 of the Privacy Act, a job applicant is entitled to access personal information an agency holds about them – but not always.

A potential employer may be able to withhold this information.

Section 29(1)(b) – Privacy Act

Section 29(1)(b) says an agency may refuse to disclose personal information that is evaluative material, if disclosing it or information identifying its source (or both) would breach a promise to keep the information or the identity of the source confidential.

Evaluative material is described in section 29(3) as information “compiled solely” for a range of purposes, and where there is a common purpose in the supply and receipt of that information. In other words, the information needs to be gathered solely for that purpose.

There needs to have been a promise made to the referee about withholding their identity or the information in confidence, and that promise must have been clear to the referee when they make the decision whether or not to supply the information.

This typically applies where an employer requests a letter of reference from a referee nominated by a job applicant.

It is important to be aware that this does not apply to unsolicited information. For example, unsolicited complaints about an employee by a disgruntled client cannot be withheld under this provision.

Section 29 of the Privacy Act allows f

Section 29 – Privacy Act

or people to be able to give free and frank references about people.

It also means potential employers are more likely to value the information they hear.

This can protect people from possible repercussions, awkwardness, and protects current and future relationships. Many people would also refuse to give references if they did not have confidentiality, or the ability to speak honestly.

A job applicant has the right to ask to see the file you have on them.

However, if you have guaranteed confidentiality to referees – like we do at VetStaff – and the referee has provided the reference in good faith that their information will remain confidential from the candidate – then you can either ask the referee for their permission to release this information, or provide your file to the candidate without any referee information in it, or the referee info has been redacted.

It’s a good idea to get permission to contact referees from the applicant as early in the selection process as possible.   Here at VetStaff we ask for three referees right at the beginning – it’s on our registration form which applicants are asked to complete, sign and then date – all our forms are set up for digital signing.

Some employers carry out pre-employment criminal record or police checks on prospective employees, particularly for positions of trust or authority – for example cash handling.

Criminal Record Checks

A criminal record check can only be carried out with the written consent of the job applicant, in accordance with the Privacy Act 1993. 

An employer can request a copy of someone’s criminal record, but only if that person completes and signs the Ministry of Justice’s form (Priv/F2) (available at justice.govt.nz/services/criminal-records), including section 1 of the form which gives authority for information to be released to a third party.

Many job application forms ask whether the applicant has any convictions or pending criminal charges. If a criminal record check is to be done, it is a good idea to notify job applicants by including a statement on the form.

Because of the time it takes – at least 20 days – only consider undertaking criminal record checks for positions that really require them – for example, cash handling or other accounts-based roles.

Later in this show I’ll share a case study about what happened when an applicant hadn’t answered the “any criminal records” question honestly and got found out.

And just so you know, under the Criminal Records (Clean Slate) Act 2004, job applicants with only certain minor convictions that didn’t result in a prison sentence do not have to declare their criminal record 7 years after their last conviction. If a criminal record check is carried out, any convictions covered by the clean slate scheme will be concealed.

Hopefully, it goes without saying that clinics will check the immigration status of new employees. Under the Immigration Act 2009, it’s an offence to employ someone knowing they are not entitled to work in New Zealand.

You can’t use ignorance as an out:  merely “not knowing” a person was not entitled to work here won’t cut you any slack if you’re employing someone who’s not legally entitled to work here.

Employers should therefore take “reasonable precautions” and exercise “due diligence” to find out whether the person is entitled to work. This could involve checking the person’s passport and taking a copy of the passport and any relevant visa for the record.

VisaView

Immigration NZ has a free online database to help employers check the status of prospective employees before offering them a job.

It’s called VisaView and employers must register first to use the database using your igovt registration info.  An easy way to find this info is from your clinic’s ACC payment notices.

VisaView allows registered New Zealand employers to check whether a person who is not a New Zealand citizen is allowed to work for them in New Zealand.  It also allows registered employers to confirm New Zealand passport information provided by the jobseeker, and therefore confirm New Zealand citizenship and entitlement to work in any job.

Choosing referees

I always let job applicants know when I’m about to contact their referees so they can give them the heads-up to expect to hear from me.

Here are 5 things to think about when asking someone to provide you with a reference:

1. Immediate direct report / manager – unless you’re applying for your very first job and you’ve never worked before, an employer (or recruitment agency) will always want to have a reference from your immediate manager.  If you’re not prepared to provide one at that level, eyebrows will be raised.
2. Choose your referees wisely – if you’re going to DIY your own job-hunting and not use an agency like VetStaff – your referees are going to be called multiple times.  The novelty of being your referee could wear thin very fast if you’re unsuccessful or you decline some positions you’re offered.
3. Let you referees know what you’re doing – especially if you’re only applying sporadically for positions, you’re successful with your application – then it’s polite to say thank you to them – or you’ve decided to stay put for a while.  Keep in touch with your referees – it’s the right thing to do.
4. Ask them first – no one is obligated to provide a reference for you, so make sure you ask their permission.  If you don’t it creates a bit of an uncomfortable situation – and I’ve had it happen a couple of times – when you ring up a referee and they’re surprised you’re calling because they had no idea they were being asked to be a referee.
5. Mutual trust – if you don’t get the job – and not all applicants will get the position they’re going for – you want to be able to know it wasn’t because your referee threw you under the bus.   Of course, if you don’t get the job think seriously before you decide to take action against your referee. It’s not unheard of for people to sue referees.  But think about it: it’s not going to look good for you if word gets out that you hold grudges or grievances.  If you think you were hard done by, use a different referee next time around.

Case Studies

In the case of negligence for an inaccurate reference

It’s the UK case of Spring v Guardian Assurance PLC (1994),  and is currently the leading case on the duty of care when employers provide employment references for former employees.

When a potential employer asked the company – Guardian Assurance – for a reference for Mr Spring, the company alleged he was selfish, lacked team spirit, lacked honesty, was in debt to the company and was incompetent.

As a result of this damaging reference Mr Spring didn’t get the job.

He obviously took umbrage to that – as is understandable.  The Court found that the reference was inaccurate, and it was held that an employer who supplies an inaccurate reference can be liable in negligence to the person for whom it was supplied.

The moral of the story here:  always tell the truth and make sure you keep records that aren’t going to embarrass anyone if they’re made public.

Case example: Privacy

A job applicant had provided a written reference and also nominated several other referees to a prospective employer.

The employer phoned all the referees and also the person who’d given the written reference.

The woman didn’t get the job and complained to the Privacy Commissioner that contacting the person who’d given her a written reference breached her privacy.

However, the Commissioner felt that the purpose of providing the written reference was to allow the employer to assess her suitability for the job. Contacting the person who wrote the reference and telling them she had applied for a job was directly related to this.

Case note 19740 [2002], Office of the Privacy Commissioner.

Case example: Starting work before checks completed – the case of Mr Bourne & Carter Holt Harvey (2011)

Mr Bourne was offered permanent work after initially working for the company through an agency.

He completed an application form that advised “You should ensure that the information you provide is entirely accurate. The provision of false information is grounds for dismissal if your application is successful”.

He answered “No” for the question “Have you ever been convicted of a criminal offence?” and signed a declaration that the information given in the form was “true to the best of my knowledge”.

He was offered a job conditional on medical and drug tests and criminal record checks.

The company didn’t apply to the Ministry of Justice for a criminal record check until a week after Mr Bourne had started his permanent job.

The check revealed five convictions, the last of which was for wilful damage for which Mr Bourne received a suspended sentence.

Carter Holt Harvey dismissed Mr Bourne for misrepresentation of personal information.

The Employment Relations Authority determined that Carter Holt Harvey was entitled to invoke the expressly conditional nature of the employment.

The Authority determined the company had acted as any fair and reasonable employer would have done in the circumstances and the dismissal was justified.

The Authority noted that since this case, the company had found it safer not to offer employment until it had received a response from the Ministry of Justice about criminal convictions.

However, the Authority said that no criticism could be made of the company’s preparedness to trust a job applicant to give the correct information and allow the person to begin employment without delay.

Trust is required to be a foundation of any employment relationship.

Bourne v Carter Holt Harvey Ltd (2011)

SOURCE

Outsource rather than skip

So now you’ve heard a bit about what’s involved in reference checks.  Hopefully you’ve got that background checking is far too important to skip or gloss over,

If you’ve ever worked in a team with a “wrong hire” you’ll know the grief, stress and angst one misfit person can cause.

If it’s not something you want to do yourself and/or you just don’t have the time for it, then consider outsourcing this part of your recruitment process – especially if you’re a smaller, independent clinic because the chances are high there’s no one person tasked with the job of doing background checks at your place.

If you’re the Practice Manager of an independent clinic, you’ll be wearing many hats – recruitment is but just one of those.

The costs (legal, lost opportunity, reputational, distraction) of disciplinary action far outweigh the investment of outsourcing background checking candidates.

Experienced professionals know what they’re doing and what red flags to be alert to.

VetStaff can be contracted to complete for this step of the recruitment process for you.  Because we’re local, we understand NZ employment law and kiwi veterinary clinic requirements.  If this sounds like something that you’ll find helpful then get in touch with me on 0800 483 869.

I’ll make sure my full contact details are on the show notes page at pawsclawswetnoses.fm as well.

In Summary

1. Background and reference checking is an essential step in the recruitment process
2. Choose your referees wisely – especially if you’re going to do the job hunting yourself because it means your referees are going to be called multiple times by multiple people – remember – it won’t take long for your shiny halo to start dimming.
3. Respect and protect people’s privacy – the law will likely be on their side, not yours.  You can’t just start chatting about a potential new hire with your mate at the tennis club who knows them.  You need their permission otherwise it’s an invasion of their privacy.
4. Ask for the information you need and nothing else.  If you don’t need to credit, police or criminal background check then don’t.
5. Ask the right questions and keep asking until you’re satisfied you’ve got the truth.  Not everything is as it seems on the first pass.
6. Reference check every new hire – even for just a one day locum assignment.
7. Remember that reference checks protect your and your clinic’s reputation – see them as an investment of your time.
8. If you don’t have the time or other resources to background and reference check then outsource to someone who does.  It’s an investment, not a cost.

Thank you for listening to PCWN – if you liked this episode I’d really appreciate it if you left us a review on Apple – it makes such a difference in helping others find this show – I’m sure you know how algorithms work.     We loooove 6 our of 5 star reviews 😉

If you like listening to PCWN you can subscribe to wherever you’re listening to this episode by clicking the subscribe button – on Spotify, Apple, iHeartRadio, etc – that way you’ll never miss a future episode.

If you have a topic you’d especially like to have covered on an upcoming episode, please let me know and I’ll schedule it in. Email Julie