Employee References: Case law suggests that common sense and honesty are still the best policies

When it comes to verifying references, getting HR Departments to release any real information, beyond the basic dates-of-employment, is next to impossible. Fear of being sued for defamation has led to most HR pros feeling skittish when asked any questions about past employees and makes it difficult for recruiters to get the real scoop on potentially dangerous applicants.

This fear of lawsuits is unsubstantiated by the relevant case law. Here are the three most cited cases regarding employer references and the REAL facts surrounding them.

1) Jerner v. Allstate Insurance Company, No. 93-09472 (Fla. Cir. Ct. 1995) – In Jerner, the employee (Paul Calden) had exhibited some bizarre behavior while at Allstate, such as claiming that he was from another planet and writing the word “blood” next to each name on a list of his coworkers. He was eventually terminated after being found carrying a gun in his briefcase.

When he was fired, he was given a flattering letter of reference that made no mention of the true reason for his termination. He used to glowing letter of recommendation to obtain employment with another company. Later, when Calden was fired by his second employer, he took a gun into the cafeteria and shot five people, killing three of them. Their families sued Allstate for failing to disclose his true work history. Allstate eventually settled for an undisclosed sum.

Lesson for Employers: if you have a mentally disturbed employee who claims to be from another planet, writes “blood” next to the names of all his coworkers and is fired for bringing a gun to work – DON’T GIVE HIM A POSITIVE REFERENCE LETTER.

2) Randi W. v. Muroc Joint Unified School District (1997) No. S05144, 97 DAR 965. In Randi, a student alleged sexual molestation by a teacher. The teacher had been accused of similar misconduct on multiple occasions at another school; the administrator of that previous school had failed to disclose the reports of abuse but was quick to praise the teachers skills and “unconditionally” recommend for “any administrative post”. The teacher was hired based on the good recommendation and shortly thereafter he sexually assaulted a thirteen year old student.

Lesson for employers: don’t “unconditionally” recommend that other companies hire sexual predators.

3) Gibson v. Overnite Transportation Co., 671 NW2d 388 (Wis. App. 2003) – In Gibson, the plaintiff (Mr. Gibson) quit his job at Overnite Transportation and lied about the reason why. He said he was going to take over his sick Grandfather’s company, when in actuality he was going to work for a competitor.

When the competitor contacted Overnite for a reference, Gibson’s former supervisor, mad about being lied to, angrily made a series of false and disparaging comments about Gibson. As a result, Gibson’s new employer rescinded the job offer. Gibson then sued Overnite for defamation and won $33,000 in compensatory damages for lost wages and $250,000 in punitive damages.

Lesson for employers: don’t give references out of anger, don’t make false statements and always have HR, not the former supervisor, answer reference questions.
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These cases in no way suggest that we, as HR professionals, should give out less information or that we should be afraid to give a frank and factual reference. They simply reinforce the common sense axiom that honesty (as in, tell the truth without embellishment) is always the best policy.

If the employers in the above cases had used dispassionate common sense, those cases would never have gone to trial and we would all be more confidant in what we can share when someone calls for a reference.

It is frustrating to be given almost no information from the HR office on the other side of the phone when trying to check references. It makes recruitment more difficult and increases the chances of a poor hiring decision, maybe even a dangerous one.

Let’s help each other out and throw away our scared-y-cat “not gonna say anything” policies and instead use some good ol’ fashioned integrity and common sense. Our workplaces will be safer and screening applicants will be a lot easier if we could all just agree to give one another frank, factual and relevant employment information.

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