Reference checks are a critical component of a broader risk-management strategy designed to meet the standard of care and mitigate exposure to negligent hiring and negligent retention claims. Simply collecting reference names is insufficient; employers must actively contact references, ask standardized, job-related questions, and document all responses consistently.
Reference checks and background screenings are essential tools for discovering information that would alert them to risks. Conducting them thoroughly by calling references, verifying employment and credentials, and documenting findings, demonstrates that the employer made a good-faith effort to identify potential issues.
Negligent Hiring Risks in New York
Negligent Hiring is a recognized legal claim in New York. Employers may be held liable when they fail to uncover information that a reasonable hiring process would have revealed. A notable illustration is the recent Second Department case of Sallustio vs. Southern Westchester Board of Cooperative Education Services (2025).
In Sallustio, the appellate court examined whether the school had, or reasonably should have had, notice of the teacher’s tendency toward inappropriate conduct. Evidence suggested that prior incidents involving the teacher were discoverable through reasonable diligence. Therefore, the court determined that the case could proceed to trial on claims of negligence, negligent hiring, supervision, training and retention, noting that an employer may be held responsible when they are aware of an employee’s potential for harmful conduct and fail to take appropriate preventive action. This decision underscores the importance of vigilance and careful hiring practices, as liability can hinge on whether an employer acted reasonable to address known or foreseeable risks.
Best Practices to Strengthen Compliance and Reduce Risk
To enhance hiring practices and demonstrate reasonable care, employers can:
- Use a Standardized Reference-Check Questionnaire
Prepare a script of factual, job-specific questions that evaluate performance, reliability, interpersonal skills, and rehire eligibility.
- Make the Calls Every Time
Employers should ensure references are actually contacted. Recording the date, time and outcome of each call shows diligence and consistency.
- Maintain Thorough Documentation
Keep detailed notes of all reference responses. This documentation helps defend hiring decisions if questions arise later.
- Train Hiring Managers on Legal Boundaries
Proper training ensures that managers understand which questions are allowed, how to conduct compliant reference checks, and hot to spot potential warning signs.
- Integrate Reference Checks Into the Standard Hiring Workflow
Embedding this step ensures it is not skipped and that it becomes part of the company’s demonstrated standard of care.
Takeaway
Reference checks are a cornerstone of responsible risk-aware hiring, not just a procedural formality. By actively contacting references, using structured, job-related questions, and performing thorough background screenings, employers can make more informed decisions and demonstrate diligence in managing workplace risks. These practices help create safer, more reliable, and better-performing teams while supporting consistent and defensible employment decisions.