Law Review: How much information is too much with former employee referrals?
There is no clear answer to our quiz, but some experts will tell employees to provide “name, rank and serial number” and no other information about former employees. Others suggest a firm policy: “The firm policy is not to provide that information.”
But it is difficult not to answer questions about a former employee, especially in a small town and in particular when the employee merits a positive comment.
A case that came down this month discusses the legal risks to an employer for providing incorrect information about a former employee.
Noel filled out a background questionnaire for his position with GTE, for whom he had just begun working on a contingent basis. He was seeking a full-time job. Noel answered that in 1994 he was convicted of a felony he described as “aiding and abetting/not fully involved … parole/probation to youth authority.” I.e., no big deal.
Prospective employer GTE retained ChoicePoint to conduct a background investigation of Noel. They called his former employer, Wilson’s.
The Wilson’s manager advised ChoicePoint that Noel left because of “lost prevention issues” and had an “unfavorable rehire status.” The GTE manager was wrong. There was no loss prevention issue nor was Noel listed as a “do not re-hire.” The GTE manager confused Noel with another Wilson’s employee who had been fired.
ChoicePoint looked into Noel’s 1994 aiding and abetting felony for which he supposedly received probation. In fact, Noel had been convicted of carjacking, three counts of attempted robbery, two counts of exhibiting a weapon, two counts of residential burglary and four counts of robbery. He was sentenced to the California Youth Authority and released on parole four years later. I.e., a big deal.
On that information, GTE terminated Noel’s brief employment and provided him with copies of ChoicePoint’s reports, including the erroneous “do not re-hire” notation.
Employee vs. employer
Ignoring that he had basically lied about his criminal record on the application form with GTE, Noel found an “ankle biting” lawyer and sued Wilson’s for defamation and emotional distress.
Wilson’s defended Noel’s defamation suit claiming their statements were privileged, protected by civil code ¤ 47(c). That code protects statements made by employers about their former employees to prospective employers if the statement is “based on credible evidence, made without malice.”
The trial court and court of appeal concluded that although Wilson’s statements about Noel were incorrect, they were made in good faith. Wilson’s manager confused Noel with another employee. It may have been a negligent statement but it was not malice, meaning “arising from hatred or ill will evidencing a willingness to vex, annoy or injure another person.” Nor was there “reckless disregard for the truth.”
The court noted the public policy to encourage candid communications from former employers to prospective employers, quoting articles showing that “no comment” policies are detrimental to society as a whole. The court wrote: “To the extent that ‘no comment’ and ‘name, rank and serial number’ policies protect employers, the protection comes at the expense of communication in the job market. Employers’ silence policies arrest the flow of positive information as well as negative information that most typically creates the risk of being sued. The consequences of employer silence affect the employers who seek references as well as job seekers who would benefit from receiving positive references.”
The court of appeal concluded that Wilson’s incorrect information was a “careless blunder,” an unintentional error not enough to constitute malice, so it was privileged. Noel’s lawsuit against his former employer was dismissed.
Bottom line, employers may provide information with impunity about their former employees based on credible evidence (not mere rumor), made without malice but in good faith.
Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at firstname.lastname@example.org or at the firm’s Web site http://www.portersimon.com
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