Have you ever contacted a potential employee’s referee — or been contacted yourself as a referee — with the promise that all the information given about the potential employee will remain confidential? You might be surprised to know that you’re on very shaky ground. Doing background checks on potential employees is a standard practice, but just how far can you go before you trip up on New Zealand’s privacy laws? Let’s say Joe Bloggs applies for a job and offers you two referees to contact. But your old university friend works at Bloggs’ current workplace, so you ring him up to get the real dirt. That’s okay, right? Wrong. Clendon Feeney lawyer Averill Parkinson says the Privacy Act only allows you to collect information about Bloggs from his nominated referees. You are not allowed to quiz your old friend unless Bloggs agrees. However, although this is the law, it seems a lot of people don’t adhere to it. One common reason given is the small size of the industry in New Zealand. David Newick, of recruitment firm IT Futures Consulting Group, says his company doesn’t do it — and doesn’t condone it — but he knows it happens. He says it’s understandable but disappointing. "Somebody will see a CV arrive on a desk, and before they even take it forward they’ll ring somebody and say: ‘So you know this chap?’ It’s real old-boy network stuff." W Stevenson and Son MIS manager Jim Swanson also wouldn’t do it himself but he knows of plenty of people who have. "Once you‘ve been in the industry for a few years so you get to know a lot of people in a lot of places." Apart from being illegal, the danger is that you won’t get an objective opinion on the person. Says Newick: "It’s just one person’s opinion and you should be relying on a well-thought-out and constructed interview process." Swanson agrees, saying, for example, a former co-worker of the applicant may have an axe to grind. He says you’re more likely to be professional about someone if you are a formal referee. Newick suggests one solution is finding out from the applicant who they reported to in their previous job and asking them if you can speak to that person. Clendon Feeney managing partner Craig Horrocks says you can ask applicants to sign a form that allows you to make more general enquiries. Even when you’re contacting nominated referees you have to be careful. You shouldn’t be telling them that whatever they say will remain confidential. The Privacy Act requires disclosure so unless you’ve got something signed from the applicant saying it’s okay for the referee’s comments to remain confidential, then you can’t make that promise. Bloggs has a right to find out what was said. Newick says he does not promise confidentiality to nominated referees, however, in reality candidates don’t tend to ask you what was said anyway. People also tend to choose referees who will say good things. Despite the minefield, everyone thinks verbal references are the best. As Newick observes: "I’ve never seen a bad written reference." Regarding other sorts of background checks, Horrocks says that there’s no legal reason that you can’t make any Enquires you like, but you must go through the right procedures. If you want to seek information such as a credit record from an employee, then you must get authorisation from the employee. If you’re interested in a potential employee’s criminal record, then you’ll have to get the applicant to present you with the information. When doing any background research you have to keep in mind this question: is it reasonable for me to ask for this information? Swanson doesn’t do credit and criminal record checks — and questions why you would do them unless they were relevant to the job. He says his background checks are primarily to see how someone will perform in the role and are generally done when he has decided he wants the person. "It’s just the last green light." Swanson admits it’s always a punt. Sometimes you’re talking to a referee from a company you’ve never heard of, or you’ve never heard of the referee, but you have to assume they are being professional. And what about psychological test information? I read about one expert who said that you must stick to job-related subjects when doing background checks, including psychological tests. You must not do a test which Mills is Computerworld’s careers editor and can be contacted at email@example.com or ph: 03-467-2869 or fax: 0-3-467 2875.