Monday, December 5, 2011

When I was younger it was common practice when leaving an employer to ask for, and receive, a Letter of Recommendation. But in today’s litigious society the fear of being sued frequently keeps many employers from giving Letters of Recommendation to or references for former employees. A common practice by many companies is to follow the “name, rank, and serial number” scenario, providing information of no real substance.

But today’s atmosphere for providing Letters of Recommendation is changing. Courts across the nation have created legislation which protects employers who disclose, in good faith, a previous employee’s job performance. The goal of this legislative change is clearly aimed at making it easier for employees to get Letters of Recommendation, for former employers to give honest recommendations (good or “bad”), and for prospective employers to be able to receive honest, forthright information from previous employers.

Thirty-eight states now have Shield Laws in place which provide protection to former employers who give truthful recommendations and references. These shield laws provide civil immunity so long as the information provided was done so in good faith, is truthful, is documented, and is presented without bias or opinion.

Best Practices for Letters of Recommendation

  • At least 38 states now have specific laws designed to protect employers who give honest recommendations or references. Know the laws of your state regarding this issue
  • Recommendations must be truthful; do not give a falsely negative or a falsely positive review – you could be sued for giving false information, whether good or bad.
  • Be sure your recommendation is verifiable by employee records such as progress reports, reviews, attendance records or disciplinary records
  • Medical information may never be disclosed
  • Remember non-discrimination laws: you cannot mention race, religion, sexual orientation, or gender
  • Only one person in your company should be authorized to verify them before issuing them to an employee
  • If possible, get a written release from the employee and the employer asking for information.  Here is an example of good release form.

Here is a list of shield laws for 36 states: Job Reference Shield Laws

For detailed info about shield laws by state view the link below. Look for links by state followed by “employment screening” to see each specific state’s laws regarding references and recommendation letters.  National Employment Screening Shield Laws by State

As an example, here is Washington State’s Shield Law passed in 2005:

Liability immunity — Disclosure of employee information to prospective employer RCW 4.24.730

(1) An employer who discloses information about a former or current employee to a prospective employer, or employment agency as defined by RCW 49.60.040, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (a) The employee’s ability to perform his or her job; (b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.

(2) The employer should retain a written record of the identity of the person or entity to which information is disclosed under this section for a minimum of two years from the date of disclosure. The employee or former employee has a right to inspect any such written record upon request and any such written record shall become part of the employee’s personnel file, subject to the provisions of chapter 49.12 RCW.

(3) For the purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth.

History of Lawsuits for Letters of Recommendation and References

The article linked below was written in 1999 and details the history of lawsuits up to that point on this topic. It goes on to say, “Only a small number of defamation suits are brought against employers each year. Fewer still are successful. However, the fear of litigation is often sufficient to keep information about former employees from being provided.

The article’s summary states that it is too early to know how the courts will interpret the “new” shield laws, however, remember that this article was written 12 years ago (1999).

Another article called “Fear of Defamation lawsuits for employee references is overblown” gives further insight into the way corporations have responded to fear of litigation rather than to actual fact. The author, Ellen Simon, is recognized as one of the first and foremost employment and civil rights lawyers in the United States. She has been representing employees for thirty years.

She states, “I have been following the law of defamation in the workplace for a long time. I have written about it, spoken about it, and taught it. The truth is, suits in which employees sue their employers for defamation are just not that common and never were… In all of my years of practice, I can only recall two defamation cases.

Former Employers Can Be Sued For Providing a Falsely Negative Letter of Recommendation

I think this is obvious to most employers and managers. Do not make false statements about a former employee. Keep to verifiable facts and leave your opinion out.

Former Employers Can Be Sued For Providing a Falsely Positive Letter of Recommendation

Former employers, and former supervisors/colleagues, have been sued for providing false positive references for an employee, especially if they present a social threat to others. In 1997 a California school was successfully sued for giving a recommendation that ”highly praised and unconditionally recommended” a teacher, despite the fact that they knew the teacher had received complaints for sexual harassment and inappropriate touching.

When these issues arose at the new work place, the new employer successfully sued because the old employer had falsely misrepresented the teacher who they knew represented “a substantial and foreseeable risk of physical injury” to others. The Court ruled that “liability may be imposed if the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of harm to a third person.”

In another case, an anesthesiologist was given a glowing recommendation by a doctor who had been involved in the termination of this employee for Demerol abuse. At his new job, he committed a gross error which left a woman in a permanent vegetative state. Since the recommendation was part of the reason he was hired, the hospital successfully sued the doctor for giving a falsely positive recommendation and failing to note the potential risk he represented to others.

Check-out what Chefs have to say about letters of recommendation on LinkedIn.


And finally, the obligatory disclaimer to protect myself from malcontents, ambulance chasers, and other litigation hounds.
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