In many ways, evaluating a job application is an investigation into the past of the applicant. There are many specific questions that a prospective employer can ask a previous employer when investigating a potential employee. Permitted questions are those that are directly related to the position and the applicant's ability to perform the job tasks, along with working well with others.
There are, however, some specific questions that cannot be asked. Federal law requires that questions concerning race, gender and religion be avoided. It is generally obvious that race and gender questions are out of bounds during an interview, but interpersonal questions are also not allowed.
Questions About Work Experience
Many highly qualified applicants will have extensive experience, so be prepared for all references to be contacted. A potential employer can ask a previous employer practically anything regarding an applicant if the question is job-related. Questions can be asked about positions that the applicant has held for the previous employer, especially if the consideration is for the same or a similar position. One of the most common permissible questions is whether or not the employer would rehire the applicant.
Questions regarding work efficiency are usually included in the discussion, but many former employers will only answer non-subjective questions. Attendance questions and willingness to work overtime are also allowed. A potential employer can ask a question about anything provided on a legal application, which can also present other legal problems with the application itself.
What Former Employers Can Say
This may be the more relevant answer to the question, and this also includes what they can't say. Many times, a prospective employer may require the applicant to waive the right to sue for defamation over questions included in an employment reference evaluation. This is legal coercion and is only acceptable if the applicant accepts it as such.
A waiver does not eliminate the legal standing to sue a former employer. However, a defamation case is not as simple as having to repeat a reason for the termination of a potential employer. Defamation suits are civil procedures, and the burden of proof is assigned to the defamed former employee's legal counsel. In addition, the statement must be false, including embellished accounts and not privileged speech according to state law.
State Law Applications
The only federal laws concerning employment consideration are Equal Employment Opportunity Commission enforcements, which can establish standing to sue for discrimination as well as defamation in certain situations.
Most employment defamation cases are filed at the state level, and each state has specific statutes regarding employment law. A state that grants privilege to former employers regarding employment references can almost give former employers carte blanche authority to say whatever they please.
The most important legal component of what a potential employer can ask usually depends on the former employer's company policy on providing references, as many do not respond other than verifying prior employment.
The best plan of action should always include talking to the former employer about applying for the position in question. This can be problematic when the applicant is still employed by the questioned employer, which could keep the applicant in their current position.
Anyone who is considering a career move, especially a professional, should discuss a potential employment move with an attorney before applying. Never include an actual reference on a job resume when you may be apprehensive about the outcome. The "employer's will" employment system tends to always empower the employers first, and only allows minimal legal recourse for job applicants.