Outten & Golden: Empowering Employees in the Workplace

References: What is Your Former Employer Saying About You?

March 4th, 2004 | Paula Brantner

If you apply for a new job, chances are good that you will be asked to provide references from former employers. And while a reference may not mean what it used to, it still could mean the difference between getting a job and not getting a job. Some employers go too far, and say things that simply aren’t true about former employees, while others don’t go very far at all, as they have a company policy against disclosing anything about former employees except dates of employment. If you’re looking for a new job, it pays to know the policy of your former employers, as two recent articles in the Christian Science Monitor highlight some of the problems employees face concerning references from their former employers.

When a former employee uses a previous employer as a reference, that employer has a number of options when it comes to responding to a potential new employer. An increasing number of employers, however, have adopted a policy of only verifying employment, with job title and dates of employment the only information that can be released about former employees. (See Would You Hire This Man?). One source, J.H. Verkerke, professor of law at the University of Virginia, estimates that about 70 to 80 percent of American companies forbid employees from giving out extensive references. In many situations, this policy was borne out of actual or potential legal problems encountered by companies where the individuals giving references said too much, or occasionally too little.

Companies where those giving references convey inaccurate or deliberately misleading information have faced defamation lawsuits. One defense lawyer claims that fired workers are winning million-dollar defamation lawsuits against former employers who allegedly gave bad references. Jonathan Wilson, chairman of the labor and employment law section of Haynes and Boone LLP in Dallas, says “[i]t’s not worth the risk of litigation,” and advises clients not to offer anything but title and dates of employment. (See If An Old Boss Smears You, Hire a Detective) This prevents situations like that recounted by Heidi Allison of Allison and Taylor, where a former boss spurned by his employee after their relationship ended falsely told those calling for references that the employee was dyslexic.

And just as an employer can go too far saying bad things, an employer risks litigation by going to far to say good things about an employee which are not true. In one leading California case, a school district provided glowing recommendations regarding its former employee, Robert Gadams, a school administrator. “I wouldn’t hesitate to recommend Mr. Gadams for any position!” said a school administrator in Mendota, Calif., who also lauded Gadams’ “outstanding rapport” with students. However, this same person was alleged to have known that Gadams had given massages and made sexual remarks to female students. When Gadams went on to molest a 13-year-old girl at the new school that was unaware of his past and relied upon the top-notch recommendations when hiring him, the former school district lost a lawsuit for failing to provide accurate references. While some consider the California case an anomaly unlikely to be followed in other jurisdictions, many have concluded that it’s better to say nothing than to embellish the truth, whether it’s done positively or negatively.

However, the complete lack of a recommendation can also be problematic for both workers and employers. For example, one employer who completely failed to even verify employment faced litigation from a former bank employee who was unable to find new work in the financial services industry. Paul, a 25-year banking industry veteran recounts that he “was laid off after a corporate merger, but the bank refused to respond to requests for a reference by potential employers. No one in the banking industry would hire me without a reference, so I finally had to get a job as a substitute school teacher to pay the bills.” Paul settled with his former employer for an undisclosed sum. Those in the field claim the failure to verify employment is a common tactic. According to Michael Rankin of Documented Reference Check Inc. (DRC), “Devious ex-employers can blow you out of the job market by refusing to respond. Potential employers can’t hire nonverified applicants without risk of leaving themselves wide open for a negligent hiring suit.”

While good employees can’t get the references they need to stand out above other candidates or even receive full consideration, these policies allow bad employees to slip through the cracks. Recently, the case of Charles Cullen came to light. Cullen, a New Jersey nurse who has admitted killing as many as 40 patients with lethal drug injections, was able to continue to find new nursing jobs through his 16-year career, even though four hospitals and one nursing home fired him, another hospital suspended him, and another questioned him about a patient’s suspicious death. It was only late last year that Somerset Medical Center in Somerville, N.J., looked into questionable lab results involving patients under his care, leading to his arrest and charge with murder. While several of the facilities now face lawsuits from relatives of the murdered patients, five medical facilities in Pennsylvania were recently cleared of ethical violations, since they did launch limited background checks and reported suspicious deaths.

So what’s an employer to do? Is it truly a “damned if you do, damned if you don’t” situation? If employers who give no references are getting sued for failing to verify employment, employers who give good references are getting sued for not disclosing negative information, and employers who give bad references are getting sued for defamation, the situation may appear unduly complicated from the employers’ perspective. However, one attorney representing workers proposes a simple solution: “Call me crazy, but the truth is always a good place to start,” says Peggy Garrity of Santa Monica, California. “I do see why employers are very cautious, but the policies put a lot of wackos out there in the workplace because people don’t share information.” Another expert acknowledges that it’s still possible to give references. “If employees are careful, if they’re documenting real performance problems, and the references they give are accurate, they shouldn’t have to worry about this too much,” says Pauline Kim, professor of law at Washington University in St. Louis.

And what should employees who think they have been subjected to bad references do? One approach increasingly being relied upon is the use of reference checking services, or “career detectives.” These services will, for a fee, contact former employers to find out what is being said about an employee who is job hunting. If the reference is inaccurate, or the company fails to respond, employees know that they have a problem and can take action, such as writing their ex-employer a “cease and desist” letter demanding that the company stop giving the bad reference, or exploring the possibility of suing their employer in a defamation lawsuit. While this may not always solve the problem, it is a first step towards finding out whether your previous employer is holding you back when it comes to obtaining future employment.

For more information about reference checking services, see Allison & Taylor Reference Checking Service. If you buy one reference check, you get one free, now through April 15, by using the link above and promotion code CS (and it helps Workplace Fairness!).

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