Category Personnel/Employment
Title Request for References: Handling Potential Liabilities
Author/s Philip Scott, Esq.
Preview Request for References: Handling Potential Liabilities
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Request for References: Handling Potential Liabilities
Philip Scott, Esq.

A perennial tension for employers is how much to share on a job reference. Not a big problem when the person is a great employee—but it gets a little more stressful when that employee has left under less-than-ideal circumstances. This area of the law is state specific, and because each state will have its own particular nuances, these are only general concerns and elements. Each state will have its own flavor. Think of it as Baskin Robbins... without the ice cream.

Risk in Giving (and Withholding) Employment References

Tortious Interference with Business Relations

The former employee has (or has a reasonable probability of) a business relationship. The school knew of the relationship and purposefully interfered with it out of malice or with improper/illegal methods and caused economic damage to the former employee. The former employee likely would have gotten the job, but the poor recommendation, made out of animus, ended the process or the information for the former employee terminated. This tort has a close cousin—tortious interference with contractual relations—which typically requires that a contract be in place.

Retaliation

Many federal and state employment relationship statutes include retaliation provisions that prohibit employers from taking adverse actions against employees who exercised their rights under the statute. These rights may include filing agency complaints or actions against you as the employer. A retaliation claim must be argued under a federal or state statute that provides retaliation protections and must prove that the employee engaged in activity protected under the statute, the employer subsequently took negative action against the employee, and that negative action was connected to the employees protected action. In context, that would mean interfering with a former employee's attempts to find new employment because they exercised a right under an employment statute the school did not appreciate.

Discrimination

State and federal statutes provide a protected status to individuals who are a part of a particular identifiable group, and an adverse action the employer (former employer in this case) has taken based on that association can provoke a discrimination claim. Make sure the school can give a strong defense of why what was said had a valid reason for being shared.

Inconsistency

While inconsistency is not a tort, it can lead to tort claims. In most all the examples given, the claim often starts with the lingering question, "Why did you treat me differently?" You should have a solid answer to that question if it ever gets asked. Schools should have a consistent policy of responding to reference requests; otherwise, it might find the official school line is different than the one its middle school principle just posted on LinkedIn for the former employee. that just leads to more questions of motive.

Failure to Warn/Negligent Misrepresentation

 Not saying something could land a school in hot water as well. It is slowly becoming an affirmative duty to inform asking potential employers of a former employee's dangerous or violent predilections. If a school fails to do so and something happens, the school could be on the hook for the results to both the new employer and to the victims. If something arises here, it will be significant. Claims under these torts usually involve physical attacks (including death) or sexual abuse claims. At a minimum, do not vouch for a bad actor.

Defamation

This is the umbrella name given to torts that damage the reputation of another through spoken (slander) or written (libel) communications. Generally, defamation claims include a false and defamatory statement made to a third party, intentional or negligent fault in sharing the statement, and harm to the person the statement is about. The truth of the statement is always a defense; sharing a false statement when the school had or should have had reason to know it might not be true is usually what gets an employer into trouble.

Now that we've gone through the parade of horrible possibilities, let's visit common solutions to keep schools out of risk as much as possible.

Tactics to Reduce Liability

Common wisdom suggests employers only provide "name, rank, and serial number" references. A play off of military jargon, this wisdom says only the former employee's dates of employment, pay levels (sometimes), and titles should be shared—or, as a blanket policy, no references should be given at all beyond confirming the individual did work at the company. These options are the most conservative approach to managing the risk. However, they hold at least one significant risk. If the school had a bad actor—someone who is violent or abusive—and does not share that detail, it runs the risk of that individual perpetrating the same against someone else, who could sue the school for not disclosing. Neither does this address the desire to provide good references to those who have served the school well and deserve a good word. So what other options are available?

The most frequent change leveled against employers is defamation. As has already been mentioned, a defense to defamation is that the statement was true. Another defense is that it was an opinion and not put forward as a factual statement. Additionally, 45 states also have statutes that provide immunity and/or privilege to those providing job references. In the other five states and the District of Columbia, there are court-created protections of immunity or privilege as well. Defenses can be argued in court through the trial, while immunity and privilege can be used at the earliest court filings to make the case go away completely through a motion to dismiss (demurrer) or for summary judgment. It can be the difference between going through an entire trial (time and expense) to argue your affirmative defense and having the case go away in the first few paper filings with the court. Thus, it would be preferable to make sure anything shared would qualify for immunity or privilege under state protections.

Most of the horrible outcomes covered have an intent component or bad faith actions attached to them. Generally, unless information is documented, schools shouldn't be sharing it with a prospective employer. Nor should schools share more than is necessary and relevant to the discussion at hand. Schools may want to respond only in writing or to document everything shared; be aware this can be a double-edged sword, for it can just as easily convict as it can liberate, depending on what is shared.

Another type of protection that can lead to summary judgment is having a waiver and release of liability form, signed by the former employee, that expressly allow the school to provide a reference. These can be signed either at time of employment or at time of separation. As long as the school is acting in good faith, such releases can free the school from many concerns of a lawsuit.

In ACSI's estimation, the two most significant concerns are defamation (due to frequency of claims) and failure to warn (infrequent, but high risk). If the school has a ad actor who has violent tendencies or is abusive to students or others, there is both the risk of sharing too much and in not sharing enough. In this situation, ACSI would suggest contacting the school's legal counsel to work through options and determine how much should be shared. Determining this is a little easier if the person has been charged with or convicted of a crime, or has had court action (such as a restraining order) taken against them.

State Survey

Just as each state has its own variation of tort claims, each state has unique immunity protections for defamation. Here are the general patterns.

  • Many states will protect against defamation and many other torts mentioned in this article.
  • It is nearly universal that you should share only what is of direct interest to the one seeking the information (usually related job performance issues) or what you have a duty to share (for example, if the former employee was a bad actor).
  • The one providing the reference cannot act in bad faith, mislead, or give information they had reason to know was suspect.
  • Most statutes protect the communication once a prospective employer asks for it. This is significantly different than a school looking to share the information when it has not been requested.
  • In some states, the information needs to be documented in the former employee's file for you to share it.
  • The school cannot violate someone's civil rights or discriminate against them and still claim the statutory protection.
  • Alabama, the District of Columbia, Nebraska, New Hampshire, New Jersey, New York, and Vermont lack statutes, but have court-created protections.

LLU 27.1

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of law to particular facts requires the advice of an attorney.

Association of Christian Schools International
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Phone: 719.528.6906
ACSI.org

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