It should go without saying that people seeking employment have basic rights, just like everyone else. These rights aren’t particularly associated with the hiring process, but they are fundamental rights guaranteed to all of us by the Constitution of the United States.
The particular right with which we’re concerned at the moment is Amendment IV from the original Bill of Rights, which has to do with protection from unreasonable search and seizure. Since 1791, the Supreme Court of the United States has been defining and redefining what Amendment IV actually means. It has evolved over the last 200+ years into a basic right to privacy that we all enjoy.
But before going further, let’s make the distinction between “public” and “private” rights within the context of what we can find out about each other in the workplace. The Constitution also guarantees, for example, the right to a “speedy and public trial.” Therefore, the records of all court proceedings are public and anybody can go into the county courthouse and check any court proceeding they want to check—because it is a public record. On the other hand, nobody can gain access to an individual’s medical records because they are, by definition, private records.
“Ah-ha,” you say. “I just applied for life insurance, and they wanted to know my medical history. How private is that?” Well, the simple answer is that if you don’t want the insurance company to have access to your medical records, you can always say “no.” But if you do that, don’t expect to be issued a life insurance policy, either! In other words, your private records will remain private unless you give your permission to someone to access what otherwise would be a private record.
Now we’re down to the key distinction between public records and private records. No record is really private, however, no matter what the law may say, if you give someone else permission to access what otherwise would be a private record. The same is true with reference and background checking. Ordinarily, talking to previous employers about a former employee’s overall job performance could be an invasion of privacy. But if we want to continue to be considered for employment, most of us will give the prospective employer permission to talk with people for whom we’ve worked.
The bottom line is this: Most of us are willing to give up some of our privacy rights in exchange for things like getting life insurance or getting a job. So, from the prospective employer’s standpoint, what are the risks of checking references? None, if the employer simply asks the candidate and is given permission to do a background and reference check.