What should be said about a former employee when you receive a
call from a prospective new employer requesting information about
the employee's performance?
In one California case, the plaintiff voluntarily left her
employment with the defendant and then sought new work. A
prospective employer called the defendant on the telephone, and
based upon a poor recommendation, denied employment to the
plaintiff. The prospective employer thereafter sent a letter to
the plaintiff confirming that employment was denied because of
the bad recommendation by the defendant.
The defendant had advised the prospective employer that the
plaintiff
"was erratic in work hours, brought her personal
problems to the office, had married another employee of
defendant and caused that man to have a mental
breakdown, and contradicted plaintiff's reason for
leaving defendant's employ because of excessive
overtime hours by saying that plaintiff never worked
overtime."
At the time of trial, plaintiff was able to demonstrate to the
jury that each of the statements was false and was mentioned for
the purpose of preventing plaintiff's future employment. The
jury awarded compensatory damages and trebled those damages
pursuant to the California Labor Code.
Although intentional sabotage of a former employee's employment
future may not be a frequent occurrence, inaccurate or incomplete
disclosures are common. As a result, many employers choose to
provide a letter of reference that sets forth only dates of
employment and positions held.
Can an employer ever be faced, however, with an affirmative duty
to disclose?
In a recent California action, a 13 year old girl was sexually
molested by a school vice principal. In the aftermath, she
brought an action against other school districts and their
employees, alleging that the defendants had written letters
recommending the vice principal without divulging a history of
sexual molestation.
The letters of recommendation contained unreserved and
unconditional praise for the former employee, despite their
knowledge of complaints or charges of sexual misconduct with
students. The complaints included "hugging some female junior
high school students, giving them back massages, making 'sexual
remarks' to them, and being involved in 'sexual situations' with
them."
The recommendation provided by one of the school districts
affirmatively observed that the vice principal was "an upbeat,
enthusiastic administrator who relates well with the students"
and who was 'in a large part' responsible for making the campus .
. . "a safe, orderly and clean environment for students and
staff."
The California Supreme Court observed that "the general rule is
that all persons have a duty to use ordinary care to prevent
others from being injured as a result of their conduct." In
determining whether or not a duty to disclose exists, the court
notes that the "foreseeability of a particular kind of harm plays
a very significant role . . . ." In concluding that "the assault
was reasonably foreseeable" and that a "causal connection [might
exist] between defendants' conduct and the injury suffered," the
Supreme Court determined that in situations involving a risk of
physical injury, a duty to disclose exists.
In a federal action decided by the Ninth Circuit Court of Appeals
[States of Alaska, Arizona, California, Hawaii, Idaho, Montana,
Nevada, Oregon, and Washington] a former employee brought an
action against General Electric alleging libel. The employee had
apparently resigned and was given a letter by the company in
which his various positions were set forth in detail. The letter
contained "glowing" references to his personality and ability and
concluded "with hope for his success in the future."
The complaint filed by the employee alleged that there was
"an 'express understanding' between [the employee] and
the Company that [the employee] could use this letter
'for the purpose of obtaining employment' and that the
Company 'would provided prospective future employers of
plaintiff with the same facts as were recited' in this
letter and 'would answer any other inquiries so that it
could answer in accordance with the facts.' "
When called upon to comment upon the employee by prospective
employers, General Electric essentially set forth the term of
service and positions held. The responses also stated "Insofar
as I can determine from his records, we would not be prepared to
consider him for re-engagement."
The complaint further alleged that "the gratuitous suggestion
that from his records the Company would not be prepared to
consider him for re-engagement would magnify the negative
character of the reply . . . ."
The Ninth Circuit rejected the claim of libel observing: "Silence
is not libel. A perfunctory answer to an inquiry is not
defamation." The Ninth Circuit also concluded:
"A former employee cannot force an employer to give him
a favorable recommendation, even if the records show
all of the facts [which would support such a
recommendation] . . . . The mere fact that a
prospective employer might draw inferences from silence
or a perfunctory answer is of no assistance to [the
employee]."
Employers have been sued whether they disclose information or
they elect not to disclose information about former employees.
The moral of the story? Caution and the counsel of a
knowledgeable attorney can help you traverse the slippery rapids
of employee references.
