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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."
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.
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.
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?
- 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