Job recommendations for the bad employee

It is not enough that you have to worry about firing a bad employee; now you have to be concerned about what to say about him when he's gone.

There has been an explosion in cases involving former employees suing for defamation, slander and discrimination.  This issue arises when an employer gives a job reference that the former employee feels is incorrect and harmful to their reputation.  In other words, this situation emerges whenever you fail to give someone a favorable job reference - whether the reference is honest or not.

Many employers attempt to avoid being squeezed between veracity and litigation by only providing the most rudimentary information about the departed employee:  a confirmation of their employment, their dates of employment, the last position they held and, perhaps, their final salary or wage rate.  However, that in itself may be a form of negative review.  After all, if you had a great relationship with a former employee, you would be effusive in your praise, extolling his every workplace virtue.  You would only be close-mouthed about the person you are glad has left.

In the face of this dilemma, many employers choose to lie - they give the employee a great reference in the hope that he will become someone else's problem.  (And don't let the door hit you on the way out!)

But giving someone an undeservedly-positive appraisal carries a risk all its own.  It may result in being sued for "negligent referral."   Essentially, the former employer knows of some harmful trait regarding the applicant's behavior and fails to communicate this matter to prospective employers.

Normally, the current or former employer does not have a duty of care to future employers; they don't have to pass on negative information about an employee.  The obligation arises when the employer chooses to discuss the employee and is less than completely forthright.

One of the cases that best demonstrates the problem of negligent referral was decided in California.

In Randi W. v. Murom Joint Unified School District, a serial child molester was employed by three separate school districts between 1985 and 1991. In each district, he was found to have had inappropriate sexual contact with students.  Even though he was twice forced to resign, each of the school districts provided positive letters of recommendation. 

In deciding the case, the court held that, "ordinarily a recommending employer should not be held accountable to third persons for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person."

This is a unique case.  Hopefully, none of your former employees present the same degree of risk of harm to other persons.

The lesson to be learned:  if you decide to issue a reference, you are required to communicate the good, the bad and the ugly.

Disclaimer:

This article was published to provide information about the law, designed to educate readers about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.