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Can You Be Sued for Written Employee Recommendations?
ServiusCensus asks: "I have been asked to provide a written rather than the more normal verbal reference for a someone I used to work with. Verbal references seem to be the norm, they work well because people are more willing to tell the truth informally than they are to write it down. I want to know what problems I might get into if I recommend someone but they turn out to be a bad match for the company? I don't want some lawyer to come looking for me one dark night."
IANAL, but I have taken many HR courses and passed many certifications.
Many of the posts here have made an excellent point: As long as you are discussing facts (ie attendance, documented work completion, etc) your are GENERALLY safe (consult lawyer for state by state specifics).
As to the question of verbal vs. written, thats a tougher question. I used to give a lot of "off the record" reviews verbally. Could I be sued for those? Sure, I had to trust the individual I was giving them to (usually HR people at other companies I knew). You can get in just as much trouble for a verbal review as a written one. At that point it just comes down to proof.
Best bet: If you're afraid of repercussions or have nothing positive to say - DON'T GIVE A REVIEW AT ALL.
My mother always used to tell me: If you can't find anything nice to say, say something bad about Windows.
A client emailed me and asked me my opinion of one of my competitors as they had offered him a cheaper deal (two of our previous employee who left and set up on their own).
I told him that I didn't believe that they had the technical competance to perform the services they were now offering. It was my honest opinion and one that was proved correct in the long run but it got me in all sorts of bother when my client forwarded my comments to them!!
"Be diplomatic not candid" is the advice I came away from that one with.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
Yeah, kinda like Heinleins fair witness. If asked to describe the color of a house you got "The side of the house facing me appears to be white in color." You never draw any conclusions of your own, you just repeat back exactly what you see in an objective manner. Ive used this sort of method a lot, and its helpful in some situations, especially when you dont like the person. Then you cant get into trouble for slander or what not. Or at least not as easily.
All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
I've worked with a few people who weren't willing to comment on current or former employees. I think that a lot of that has to do with working in the public sector though, people tend to be a little sue happy. One thing I have noticed is that people who are hesitant to comment seem much more likely to comment on people who didn't perform/they didn't get along with/etc, although the conversations usually went like this:
"What did you think of Joe?"
"I can't really talk about him"
"Well, you did supervise Joe for a few years didn't you?"
"Well yes, but I don't really think I should say anything about him"
"Was he a good employee?"
"All I'm going to say is that yes he worked here and yes he worked for me. Take that to mean what you will, but I can't really say more than that"
"Ooooh, so you had problems"
"Sorry, I can't really say more than that, please talk to our HR people if you want anything else regarding Joe"
Over here its illegal (not sure what laws it breaks) to give a bad written reference.
Normally, in a situation where you would LIKE to give a bad reference you'd either decline to give a reference at all, or be very specific - eg "John always turned up on time, and his work was of the required standard".
- You may decide that it is safe to say that Joe was often late for work, since you can prove that he punched in late at least once a week -- but if being on-time isn't important at your company, and you allowed employees to adjust their own schedules, your "verifiable fact" is actually misleading and is essentially a lie (or at least a jury may so decide).
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Were you satisfied with Joe's work performance?
- If you say yes, you are representing that he did his job competently, but in fact he is human and he made mistakes, and failing to disclose that is maybe a misrepresentation to the new employer.
- If you say no, then Joe will pull out the fact that you continued to employ him for 6 years without even a warning, so obviously you were satisfied with his work performance and so you were lying when you said no. (Oh, yeah, and when you pull out the written evaluations showing that he was below-par, he'll say they were fabricated just to defend this lawsuit, he never saw them, and his signatures on the things are forgeries.)
- You may decide that your opinion that you "just didn't think that Joe was up to the project we were working on" is a safe opinion, but Joe may present the job description showing the project requirements, and he may show that he fulfilled all those requirements, and bingo now your statement was factual.
- You may decide that it's safe to say that Joe worked from December 1995 through July 2000, and his highest title was Director of Marketing, but then someone pulls out a printout of the sales presentation you gave in 1999 where you identified Joe as "Vice President, Marketing," and Joe is now annoyed that he didn't get the new job because the new employer was shocked that he had misrepresented his prior job as being the VP of Marketing.
- You say "Look, all I am permitted to say is that Joe worked here from November 1999 to August 2000, and our lawyers won't let me say any more," and of course any sensible person might conclude that there must be something to say, if you actually had to check with your lawyer about it.
In the case of an employment reference, you must worry about "reading between the lines."Life isn't fair, and employment is a terribly sensitive subject. I don't think there is any employment-law attorney who would recommend that you share any opinions about former employees, ever, or that you share any facts other than dates of employment and maybe title.
I think some employers do ask the former employee for some kind of signed release -- basically, saying "if you want us to give a reference, you must waive your right to sue us if you disagree with out reference." I doubt that such a release would be effective unless you attached the text of the written reference for the employee to accept or reject, and then if people know of this policy, they would just assume that any employee who didn't sign the release must be trouble, and now there's another implied negative statement.
This kind of crap is, of course, the reason I gave up litigation, and eventually the practice of law entirely.
-- http://www.MarkWelch.com/ Pleasanton California