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Watch Out For Ex-Employee References
Most employers know that if bad things are said about a prior employee upon
inquiry from another, prospective employer, one may be facing a lawsuit
by
the employee for defamation and other torts. It's now more complicated. The
California Supreme Court recently held that a former employer may be held
liable for providing a recommendation which fails to disclose adverse information,
if the failure presents a substantial, foreseeable risk of physical injury
to someone. (In that case, a molestation victim sued a former employer who
gave letters of recommendation regarding a former employee, a school vice
principal, without disclosing prior charges of sexual misconduct.) The Court
opined that it was not nondisclosure itself that invoked liability; liability
is invoked once an employer elects to convey a recommendation, and yet does
so inaccurately or incompletely. Therefore, it appears that a "no comment"
letter which merely verifies basic employment date is still a safe harbor.
Ross' Review: Prudent employers adopt a policy against any
employee recommendations, and provide merely dates of employment and job title
at the time of separation. Such a policy, if followed, does not reflect positively
or negatively on any one employee. Even if pressed for an opinion, an employer
should go no further than stating that a given employee "is" or
"is not" eligible for rehire without justifying details. Going further
can only increase liability risks.
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