Employer Implications of Conducting Background Checks in the Post-911 Environment

Against the backdrop of the September 11, 2001 attacks, conventional wisdom suggests that employers would be willing to disclose information about prospective employees that may be deleterious to a new, hiring employer. Furthermore, one would also expect the converse to be true: employers will be able to ascertain employee reference data so as to hire the most qualified candidates who pose no significant risks to the new employer. The opposite has been the case in both instances. Former employers are increasingly paranoid about giving job reference information to inquiring, prospective employers about former employees for fear of lawsuits by those employees who allege that negative employer references resulted in their failure to be hired with a new company; and, new employers are consequently unable to ascertain valuable information needed to hire qualified and productive employees. This analysis examines the arguments on both sides and suggests steps to deal with the present conundrum