This Week's Feature
If you can't say anything nice . . .
Excerpted from Vermont Employment Law Letter, written by attorneys at the law firm Dinse, Knapp & McAndrew, P.C.
What can you say to prospective employers that inquire about former employees? The advice from legal counsel, which has become the conventional wisdom of the HR department, is to say as little as possible, or as your mother might have put it, "If you can't say something nice, don't say anything at all."
That's almost all you need to know to deal with 99.5 percent of the situations you'll confront as an HR person responding to a reference check. Of course, you should at least acknowledge an employee's dates of employment, jobs held, and sometimes his pay rate. But what about the .5 percent of the cases in which more may be necessary?
Telling it like it is
That was Howard Cosell's mantra. It's what many people who give employment references would really like to do. And you could get away with it most of the time because most employees are good and deserve favorable references.
But as one federal judge recently observed, in today's world, "It is not uncommon for a soured employer-and-employee relationship to lead to litigation -- whether meritorious or frivolous. Thus it should come as no surprise that statements [to prospective employers] have prompted litigation by former employees."
The fear of defamation claims has enabled more than one marginal or substandard worker to go from one employer to the next, leaving havoc in his wake.
An egregious example of that havoc, a case that should cause you to reexamine the "speak no evil" approach to references, was reported recently. In that case, a doctor left one hospital where his performance was substandard and took up his practice at a hospital on the West Coast.
The doctor's malpractice at the second hospital left a young mother in a permanently vegetative state.
After the young woman's husband recovered a verdict against the West Coast hospital, that hospital sued his previous employer for failing to warn it about the doctor's problems.
It was proven at trial that the first hospital knew that the doctor was a substance abuser whose professional competence was seriously compromised by his addiction, but it said nothing to the person doing the reference check.
The first hospital merely filled out a form confirming some basic facts of employment and declined to provide any more information, citing the volume of inquiries and the burden of responding more fully.
The employer learned the hard way that the law required more. Under the circumstances, it was obligated to disclose information about the former employee's performance problems so the prospective employer would be fully and accurately informed about him when making the hiring decision.
While the $4.1 million verdict against the hospital may be the largest of its kind, it isn't the first time an employer has been held liable for failing to disclose important information about a former employee.
Other cases have involved school employees whose patterns of sexually abusing students have been covered up so they can be quietly moved on to another unsuspecting employer.
Lessons for employers
Lesson one: Do your homework. When you're hiring someone, don't just do a cursory background check. Call the applicant's references, and get as much information as you can. If the job involves tasks like working with children, the elderly, or other vulnerable populations, be especially thorough.
Negligent hiring cases also can involve hotel night clerks, cable television linemen, and other jobs that might put the employee in a one-on-one situation with customers. Check for criminal records in addition to calling former employers and references.
If the West Coast hospital hadn't tried to do a thorough background check, it wouldn't have had a claim against the previous employer that concealed important information and would have been stuck with the verdict against it.
Lesson two: Think twice before you give the name, rank, and serial number response to an inquiry from a prospective employer. If the employee it's asking about has a violent streak or a substance abuse problem that could present a danger to coworkers or the public, you seriously should consider passing that information along.
Of course, before revealing anything negative, double-check your information to be as certain as you can that you're correct. Some defamation cases have merit because the employer was too quick to pass along false information.
Once you're satisfied that the negative information is both accurate and important for the prospective employer to know, choose a smart way to pass it along. That may be the hardest thing to do.
An off-the-record phone call might be the best way to avoid a defamation claim by the former employee, but it won't provide a paper trail to defend against a claim by a prospective employer that ignores your warning signals.
It's a tough decision -- but that's why you're paid the big bucks as an HR specialist. If you're in doubt about what to do, get some legal advice.
Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from VERMONT EMPLOYMENT LAW LETTER. VERMONT EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Vermont and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Vermont does not certify lawyers as specialists in labor and employment law or other areas of concentration.
Additional resources on HRhero.com
Subscribers Area Resources
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Available to Employment Law Letter subscribers
- Loose lips lead to lawsuits
- The less said the better -- or is it?
- Be careful what you say -- it may come back to haunt you
- Only the truth shall set you free
- Tips for avoiding employment-related defamation claims
Other resources
- HR Executive Special Report: Defamation in the Workplace
- HR Guidebook - Hiring
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