Slashdot Mirror
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."
You have to say things that are verifiable and factual if you want to write it out. Saying that they don't function well with other employees is ok, but it's safer if there are employee complaints against him. Saying he is not a good worker is ok, but only if he repeatedly doesn't show up, etc.
The other (preliminary) question is whether the employee is allowed to see the reccomendation, becasue if not, it ceases to be a problem. The standard I would look at is the college recommendation letter format.
I'm a concientious
This is exactly the kind of question you need to ask a real lawyer, in your jurisdiction.
My guess is that you are less likely to be sued by a company over a favorable recommendation than by a person over an unfavorable recommendation. But I'm not lawyer, and that's only a guess.
Start every sentence with "My opinion is" and I would assume you're OK. But IANAL...
This seems strange to me though. I think I would ask that I give a verbal reference and let _them_ write it down. Isn't giving a reference a courtesy anyway?
There's a big difference between stating conclusions and stating observations.
Consider the difference between these two examples:
Example 1: "Joe Developer is a tremendous asset who has a great mastery of technology and is sure to be a powerful resource wherever he works."
Example 2: "I worked with Joe Developer on a technically challenging project with intense time pressures to get the product to market. On a number of occasions, I saw him not only detect omissions in the specifications, but he also worked with management and sales to obtain clarification. There were several times when we worked late into the night to help get a product release completed on time. I enjoyed working with him as I found his work ethic and sense of humor were real assets on this project.; I would like to work with him again in the future. "
In the second example, I'm sharing my observations based on my OWN experiences -- I'm making NO statements as to his suitability on a different project or at a later date. In other words "This has been my experience." Leave it to the potential new employer to draw his OWN conclusions.
BTW, I've found this works well in many other areas besides just references. At least, that's been MY experience! ;^)
If you a concer with legal liability, Slashdot, or any online forum, is the last place you should go. There are all kinds of ways you can screw yourself by a carelessly worded reference. Trust me, you don't want the usual Slashdot opinions, rumors, and rules of thumb.
You should also be careful about your existing assumptions. You seem to feel that you're legally safe if you stick to verbal recommendations. Not so. If there's a reliable record of your conversation, that's evidence. OK, you can avoid voice mail, and it's illegal to record phone conversations without mutual consent. But plaintiff's have been known to hire court stenographers to pose as potential employers.
Go find a real expert, and educate yourself as what it's safe to say and what isn't. That is the only safeguard, no matter how you communicate.
There is plenty of free legal advice out there by real lawyers. Granted, there is the hook, that they all hope to get you as their next client, but nevertheless I think your chances of getting a decent answer are greater there, than here :)
Check out: Lawguru. If you cant find your question in their DB of 35000 questions, they will answer it.
Hurra for Knark!
Consult a lawyer.
,"For more detail, please feel free to contact me at (phone)." If they want more detail or a personal perspective they can call you and get that info over the phone.
If you don't consult a lawyer, then only write strictly factual, verifiable information. Do not provide opinions, and stay away from putting words into the potential employees mouth (ie, don't relay opinions and statements that the employee said to you that raised or lowered your opinion of them).
"Mr X worked for the company from this time to that time, and left voluntarily. He completed 5 projects, 4 of which were on time and under budget. His 5 employee reviews indicated that he performed as expected in all areas, and was respected by his peers. He demonstrated the following skills..."
Then, near the end, place a phrase such as
-Adam
Verbal \Ver"bal\, a. [F., fr. L. verbalis. See Verb.]
1. Expressed in words, whether spoken or written, but
commonly in spoken words; hence, spoken; oral; not
written; as, a verbal contract; verbal testimony
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
if they sue you for your opinion, you're protected by your rights to free speech.
don't speculate about future performance, and stay away from facts.
"I liked having Joe Blow as an employee"
vs
"Joe performed better than 50% of our employees"
the second is a claim you may have to prove if it came down to a lawsuit.
go ahead and have a court of law prove that you like or dislike someone.....
BTW, IANAL
"The Most Fun Possible on 4 wheels" is at SunBuggy in Las Vegas
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"
Your employer probably has a policy on this. Find out what it is; follow it. This is even true if you're working for a different company than the one where you worked with the person in question.
If you don't have an employer, ask your lawyer.
(If you don't have a lawyer, and you live in New Jersey, I'll be happy to recommend mine. Verbally, of course.-)
Stupid job ads, weird spam, occasional insight at
Evidence that this is the wrong forum in which to ask this question is the fact that, of the people who actually responded with advice, about half say, "only give opinions" while the other half say, "don't give any opinions, only verifiable fact."
Try Findlaw for informal legal advice with some hope of accuracy and/or consistency.
On a potentially humorous note, I heard about someone in the banking industry who had been ripped off by a former employee. The employee actually had the gall to put her name down for a recommendation (without asking her, of course). So she replied, "I cannot recommend him too highly," and left it at that. Hmm... What do you suppose she meant by that, anyway...
And now for the IANAL-but-I-play-one-on-TV advice: AFAIK, not only can either party sue you for the contents of your letter, but another party can sue you over problems caused by the employee if misrepresentations are found to have been made.
I read about a case in CA where a high school student (allegedly molested by her principal) successfully sued the writers of recommendation letters for the principal because he had been accused of sexual harrassment before, and they failed to mention it. Of course, if they had mentioned it, the pricipal probably would have sued them.
Also, if you are the ex-employer, be even more carefull. In some states, at least, you are only allowed by law to verify the term of the employee's employment at your company, and nothing else.
Why is Grand Theft Auto a much more serious crime than Reckless Driving?
it looks like this lawyer from lawguru has a real answer: If you want to avoid all sorts of possible legal stupidity, stick to short, factual, and mostly useless information.
7 01 8
http://www.lawguru.com/cgi/bbs/mesg.cgi?i=77816
- 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).
-
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
From my non-American perspective, this sounds totally bizarre. Do people in the U.S. really get sued for recommending employees who don't work out?
I mean I can imagine getting sued for putting my signature on something that's clearly wrong. If the person wasn't really my employee at all, for example. But for a recommendation?
It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail. - Abraham Maslow
There's a reason many companies have adopted a no recommendation policy, and it's because, you guessed it, you can get sued for ANYTHING in the good ole U.S. of A.
Dueling dictionaries: American Heritage, as used at "Dictionary.com backs me until the third definition, but also admonishes me that the usage to mean "spoken" has been around for several hundred years. On the other hand, "spoken" seems like a perfectly good word to mean "spoken", which would leave "verbal" to distinguish from images or actions.
This next song is very sad. Please clap along. -- Robin Zander
You're saying my denunciation of amateur legal advice counts as amateur legal advice? Oh dear. So any denunciation of nonlawyers is ipso facto illogical. So you should only ask nonlawyers for legal advice. Gee, thanks for clearing that up!
That's the correct spelling, cretin.