Flaws in the Laws Governing Employment References: Problems of "Overdeterrence" and a Proposal for Reform

Barbara owns a small business. Two months ago, she decided to hire a new office manager. In the two months since that decision, she advertised the position, accepted and reviewed twenty-five applications, and interviewed the seven most promising candidates. After the interviews, she felt that three of the applicants she interviewed were better suited than the others for the position.

Before deciding which candidate would receive the job offer, Barbara called to obtain employment references from each of the three candidates' current employers, and to confirm the generally favorable impressions she formed during the interviews. Barbara's telephone inquiries to two of the candidates' employers, however, prompted responses along the following lines: "I'm sorry-as a matter of policy, we don't give employment references for current or former employees, but can only verify their dates of employment, salary and job titles." Her reference inquiry to the employer of the third candidate prompted a detailed and unwavering positive reference; this applicant, however, would have been her second choice if the references of all three candidates had been comparable.