The following article was published by the Daily Recorder and The Docket. Reprinted with permission.
Scenario 1: You are asked to write a letter of recommendation about one of your former employees. You feel that you should be honest, so you include some negative comments in your letter of recommendation. The former employee discovers that she did not obtain the job because of your negative comments about her. Can she state a valid cause of action against you?
Scenario 2: You are asked to write a letter of recommendation about one of your former employees. You include some information that you have about his past performance, but you omit some information that would be important to the future employer. Once you take the affirmative act of recommending an employee, do you then owe a duty to prospective employers not to omit critical information?
Two recent cases hold that employers may be liable for writing negative letters of recommendation about previous employees, or for making affirmative misrepresentations about the employee about matters that may result in a physical injury to a third person.
Recently, the United States Supreme Court held in Robinson v. Shell Oil Co. 519 U.S. --, 136 L.Ed.2d 808, 117 S.Ct. 843 (1997), that a negative reference by an employer after an employee filed a discrimination claim against that employer could subject the employer to an unlawful retaliation claim.
In Robinson, the plaintiff worked for Shell Oil for over a decade before being fired. He then filed a race discrimination claim with the Equal Employment Opportunity Commission (EEOC). While his claim was pending, the former employee applied for a job with another company. Shell Oil gave the prospective employer a negative reference regarding its former employee's performance. The plaintiff subsequently filed a Civil Rights action against his former employer pursuant to Title VII of the Civil Rights Act of 1964, which makes it unlawful to discriminate against an employee who has filed a claim with the EEOC.
Justice Clarence Thomas, writing for the court, reasoned that although the Act only applied to employees, it was evident that the anti-discrimination provisions of the Act protect both current and former employees. The EEOC, which filed an amicus brief with the court, argued that many of the protections provided by the Act would be lost if an employer was able to act with impunity against former employees. A unanimous court agreed. If an employee makes a charge of discrimination, the employer cannot retaliate, even if the plaintiff is no longer employed with the business.
The Court in Robinson failed to discuss potential ramifications of their decision. For example, if letters of reference are given by an employer as a matter of course, then a former employee who has filed a discrimination claim can presumably file a retaliation claim if a letter of reference is not provided. Therefore, an employer may face liability if it does not provide any letter of reference. It also appears that an employer can face liability for a retaliation claim regardless of the outcome of plaintiff's original discrimination claim.
Furthermore, the length of time an employer may be subject to liability has not been established, and is potentially limitless. For example, a former employer such as Shell Oil once again could be subject to liability for unlawful retaliation several years after it employed Mr. Robinson, if it provided another negative letter of recommendation about Mr. Robinson.
The California Supreme Court recently addressed a slightly different scenario involving letters of recommendation, and held that a former employer could be liable for making affirmative misrepresentations in a letter of recommendation that present a foreseeable and substantial risk of physical harm to a prospective employer or third person. Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066.
In Randi W., the California Supreme Court addressed the potential liability an employer may face if misrepresentations are made in a letter of reference. In this case, Robert Gadams was employed by three separate school districts between 1985 and 1991. While at each of the school districts, complaints were made that Gadams had inappropriate sexual contact, and had made sexual remarks to female students. Twice, Gadams was forced to resign. Each of the three school districts, however, provided positive letters of recommendation for Gadams. The letters stated that Gadams had an outstanding rapport with students, he related well with students, and he helped to make the environment safe. They recommended Gadams for any position without reservation.
Gadams was then hired as a Vice-Principal by Livingston Middle School. In 1992, he molested a 13-year old girl, while she was in his office.
A unanimous Court held that the writer of a letter of recommendation owes a duty to prospective employers and third persons not to misrepresent the qualifications and character of a former employee, if those representations would present a substantial, foreseeable risk of physical injury to the prospective employer or third persons. For there to be liability, an affirmative misrepresentation must be made, as contrasted with mere nondisclosure of information. Then, either physical injury must result, or there must be a special relationship between the writer of the letter and the injured person.
The physical injury requirement result should limit the fear an employer may have in preparing letters of recommendation. For example, if an employee in a store was accused of theft, and this was not disclosed in a letter of recommendation, there would be no liability to a subsequent employer for another theft by that person, since there would be no physical injury.
Now, let's take another look at the two scenarios presented above:
As to our first scenario, it is unlikely that the former employee could state a valid cause of action against her employer, so long as the employer's comments are not retaliatory against the employee. Civil Code section 47(c) specifically provides that comments made to prospective employers are not defamatory, if the comments are true. However, if the false comments are made with malice, and not based upon credible information, then the former employee may have a valid claim.
The answer to our second scenario is more difficult. An employer owes a duty to prospective employers not to omit critical information, if the employee presents a substantial risk of physical injury to other people. Otherwise, there is no clear duty owed, but the trend in the law appears to impose liability. The safe route to take would be not to omit critical information.
The Robinson and Randi W. cases indicate that careful consideration must be given to letters of recommendation. If you have any questions about whether a recommendation should be given about a former employee, then you should consider consulting with an attorney.
Brian Kindsvater, Esq.
Law Office of Brian Kindsvater
1024 Iron Point Road
Folsom, California 95630
(916) 761-6863 Sacramento office
Ellen Arabian-Lee, Esq.
Gurnee and Daniels
2240 Douglas Blvd, #150
Roseville, California 95661
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