Reference checks vs. background checks on campus

A reference check and a background check both happen near the end of a search, and both involve learning about a finalist from someone other than the finalist. That is where the similarity ends. They answer different questions, they are usually run by different people, and the rules for consent are not the same.

What each check answers

Which records a background check covers depends on the role, your institution’s policy and the law where you hire. Some state and local laws limit when an employer may consider criminal history, so check those rules before deciding where the background check sits in your process.

A third check often sits between the two: employment verification, which confirms dates and titles with a past employer’s HR office. Reference checks vs. employment verification explains how it differs from asking a reference about the work.

Consent for reference checks

When your own staff contact a candidate’s references, the consent that matters most is the candidate’s permission to contact them. Faculty affairs guidance at several universities makes this explicit. Penn State’s guidance tells committees not to contact a current employer without discussing it with the candidate, and to contact references the candidate did not list only with permission. George Washington University asks for each candidate’s authorization covering both listed and additional references.

• Ask the candidate for permission before contacting anyone, and record when and how it was given.
• Let the candidate nominate their references, in the roles you need.
• If you want to contact someone not on the list, ask the candidate first.
• Tell references who will read their answers.

Consent for background checks

Background checks are usually bought from a screening company, which makes the result a consumer report under the federal Fair Credit Reporting Act (FCRA). The Federal Trade Commission’s guidance for employers sets out the steps.

1. Before requesting the report: give the candidate a written disclosure in a document of its own, not inside the application, and get their written permission. You also certify certain things to the screening company.
2. Before taking adverse action based on the report: give the candidate a copy of the report and the summary of their rights under the FCRA.
3. After taking adverse action: send a notice that names the screening company, says it did not make the decision, and explains the candidate’s right to dispute the report and to a free copy.

When a reference check becomes a consumer report

The line between the two checks is not who asks the questions but who compiles the answers. According to a Federal Trade Commission staff report on the FCRA, an employer whose own staff contact a candidate’s former colleagues is not covered by the FCRA for that contact. A third-party service that runs reference checks for employers, on the other hand, is a consumer reporting agency, and its report is a consumer report.

If that service asks former employers to evaluate the candidate, rather than only confirm facts such as dates and titles, the report becomes an investigative consumer report. That adds steps: the candidate must be told within three days of the report being requested, and on written request the employer must disclose the nature and scope of the investigation within five days.

Some states add steps for colleges

Two states now require colleges to ask about sexual misconduct as part of hiring.

• California. SB 791, in effect since January 1, 2024, requires community college districts and the CSU to have applicants for academic and administrative positions disclose final findings of sexual harassment from the past seven years. AB 810, in effect since January 1, 2025, adds a signed release covering prior employers’ information on substantiated misconduct, and a reasonable attempt to obtain it at the final stage. The University of California is requested, not required, to do the same.
• Washington. RCW 28B.112.080 applies to public and private colleges hiring faculty, staff and others with ongoing student contact. Before an offer, the applicant signs a declaration and a release, and the college asks the applicant’s current and past college employers about substantiated findings. Colleges must answer those requests.

Some university systems have adopted similar rules by policy, so check your own institution’s requirements even outside these states.

Apply the same standards to everyone

The EEOC and the FTC’s joint guidance on background checks tells employers to apply the same standards to every candidate. The same principle protects a reference process. Under the ADA, the EEOC’s guidance says that before an offer an employer may not ask a third party, such as a former employer, anything it could not ask the candidate directly. Questions about health or disability are off limits in a reference check for the same reason they are in an interview.

Running both in one process

1. Decide, before the search opens, which roles need which checks and at what stage.
2. Collect the candidate’s permission for reference checks when finalists are confirmed.
3. Give the background-check disclosure and collect authorization as its own step, in its own document.
4. Keep the two results apart in your process: references go to the committee as evidence; background results go to HR for review under policy.
5. Record each consent, request and result, so the process can be shown later.

This article is general information for campus hiring teams, not legal advice. Confirm the requirements that apply to your institution with your counsel or HR policy office.