An employer has three choices when confronted with the option of providing references for a former employee: 1) provide a positive recommendation; 2) provide a negative recommendation; or 3) provide only an employee's wage information, position(s) held, and dates of employment (a "no comment policy"). Today's litigious atmosphere presents a difficult question: Which approach will act as a safeguard against liability?
Recent cases from various jurisdictions and articles from legal commentaries serve as a warning to an employer who provides recommendations that are false or misleading. An employer who provides an incomplete, but positive recommendation, could be exposed to tort-based claims for negligence or misrepresentation. Providing a negative false recommendation could expose the employer to tort-based claims for defamation, false light, or interference with a prospective business relationship. An employer choosing a no-comment policy must be careful about failing to disclose information about a dangerous employee who poses a threat of physical harm to third persons -- for example, an employee who has violated a company policy prohibiting workplace violence.
Many states have developed recommendation or reference "shield" laws. Although the scope of such employment immunity laws varies from state to state, the common desired effect is to encourage informed hiring decisions, especially where an individual has exhibited violent or criminal behavior.
A referring employer must assess the factual circumstances of each situation to determine whether to provide a workplace recommendation or reference. In making that determination, the employer 1) should attempt to be fair to the employee and the potential future employer; 2) should ensure that the information communicated is factually accurate and complete; 3) should not provide an opinion unless qualified to do so, but, if providing an opinion, differentiate it from the facts; and 5) should draft a reference or recommendation in clear and plain language.
These guidelines apply to both written and oral recommendations or references. If providing a recommendation or reference over the telephone, it is prudent to follow up with a facsimile or letter confirming the telephonic reference provided. This will avoid any future appearance of confusion regarding the communication. It is also sensible to put a copy of any communicated recommendation or reference in the employee's personnel file.
If you have a question about exposure to liability because of your employment recommendation or reference practices, you are invited to contact Gretchen at Bullivant's office in Seattle, Washington.