The following article was published by the Daily Recorder and The Docket. Reprinted with permission.
NEW PITFALLS FOR EMPLOYERS WHEN PREPARING LETTERS OF RECOMMENDATION
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.
2377 Gold Meadow Way, #102
Gold River, California 95670
Ellen Arabian, Esq.
Arabian-Lee Law
1420 Rocky Ridge Drive Suite 120
Roseville, California 95661
(916) 242-8662
