Can You Be Sued for Written Employee Recommendations? 64
ServiusCensus asks: "I have been asked to provide a written rather than the more normal verbal reference for a someone I used to work with. Verbal references seem to be the norm, they work well because people are more willing to tell the truth informally than they are to write it down. I want to know what problems I might get into if I recommend someone but they turn out to be a bad match for the company? I don't want some lawyer to come looking for me one dark night."
The most important aspect is... (Score:3, Insightful)
The other (preliminary) question is whether the employee is allowed to see the reccomendation, becasue if not, it ceases to be a problem. The standard I would look at is the college recommendation letter format.
We am not a lawyer (Score:2, Insightful)
This is exactly the kind of question you need to ask a real lawyer, in your jurisdiction.
My guess is that you are less likely to be sued by a company over a favorable recommendation than by a person over an unfavorable recommendation. But I'm not lawyer, and that's only a guess.
Re:We am not a lawyer (Score:1)
The opinions expressed are only opinions and should not be taken as a statement of fact, used as factual...I cannot be held liable... if you use these opinions you agree to indemnifiy me against any action....
with so many clauses that they will not actually use them at all because they would need the advice of counsel before they could even admit they read them.
My opinion is... (Score:2, Insightful)
This seems strange to me though. I think I would ask that I give a verbal reference and let _them_ write it down. Isn't giving a reference a courtesy anyway?
Either way... (Score:1)
Say something good and it's not true: the company sues you...
Be honest and say something bad: the employee sues you...
Re:Either way... (Score:1)
Share OBSERVATIONS not CONCLUSIONS (Score:5, Insightful)
There's a big difference between stating conclusions and stating observations.
Consider the difference between these two examples:
Example 1: "Joe Developer is a tremendous asset who has a great mastery of technology and is sure to be a powerful resource wherever he works."
Example 2: "I worked with Joe Developer on a technically challenging project with intense time pressures to get the product to market. On a number of occasions, I saw him not only detect omissions in the specifications, but he also worked with management and sales to obtain clarification. There were several times when we worked late into the night to help get a product release completed on time. I enjoyed working with him as I found his work ethic and sense of humor were real assets on this project.; I would like to work with him again in the future. "
In the second example, I'm sharing my observations based on my OWN experiences -- I'm making NO statements as to his suitability on a different project or at a later date. In other words "This has been my experience." Leave it to the potential new employer to draw his OWN conclusions.
BTW, I've found this works well in many other areas besides just references. At least, that's been MY experience! ;^)
LOL. (Score:2, Interesting)
Re:LOL. (Score:1)
Litigation (Score:1)
Need to get this off my chest... (Score:1)
Re:Need to get this off my chest... (Score:2, Informative)
Verbal \Ver"bal\, a. [F., fr. L. verbalis. See Verb.]
1. Expressed in words, whether spoken or written, but
commonly in spoken words; hence, spoken; oral; not
written; as, a verbal contract; verbal testimony
Re:Need to get this off my chest... (Score:2)
Dueling dictionaries: American Heritage, as used at "Dictionary.com [dictionary.com] backs me until the third definition, but also admonishes me that the usage to mean "spoken" has been around for several hundred years. On the other hand, "spoken" seems like a perfectly good word to mean "spoken", which would leave "verbal" to distinguish from images or actions.
Re:Need to get this off my chest... (Score:1)
Re:Need to get this off my chest... (Score:1)
Re:Need to get this off my chest... (Score:1)
Re:Need to get this off my chest... (Score:1)
Thanks for the info...
Wrong place to ask, wrong question. (Score:4, Insightful)
If you a concer with legal liability, Slashdot, or any online forum, is the last place you should go. There are all kinds of ways you can screw yourself by a carelessly worded reference. Trust me, you don't want the usual Slashdot opinions, rumors, and rules of thumb.
You should also be careful about your existing assumptions. You seem to feel that you're legally safe if you stick to verbal recommendations. Not so. If there's a reliable record of your conversation, that's evidence. OK, you can avoid voice mail, and it's illegal to record phone conversations without mutual consent. But plaintiff's have been known to hire court stenographers to pose as potential employers.
Go find a real expert, and educate yourself as what it's safe to say and what isn't. That is the only safeguard, no matter how you communicate.
Re:Wrong place to ask, wrong question. (Score:3, Informative)
Unless you really know the law and have perfect control over the telephone system that is used, the only safe assumption is that the call can be legally recorded.
Re:Wrong place to ask, wrong question. (Score:2)
So don't take any of the above poster's advice.
The Cretan Strikes (Score:2)
Re:The Cretan Strikes (Score:1)
No (Score:2)
Re:The Cretan Strikes (Score:2)
Try some of the free services out there (Score:2, Informative)
Check out: Lawguru [lawguru.com]. If you cant find your question in their DB of 35000 questions, they will answer it.
Decline (Score:1)
While the grounds for suing over a positive recommendation are few, anyone can sue over anything (and there are no shortage of people who are willing or eager to demonstrate this).
Except for certain circumstances where written recommendations are the norm (Academic Recommendations for Admission or Tenure), you shouldn't feel any obligation to provide a written recommendation.
Stick with the facts... (Score:2)
If you don't consult a lawyer, then only write strictly factual, verifiable information. Do not provide opinions, and stay away from putting words into the potential employees mouth (ie, don't relay opinions and statements that the employee said to you that raised or lowered your opinion of them).
"Mr X worked for the company from this time to that time, and left voluntarily. He completed 5 projects, 4 of which were on time and under budget. His 5 employee reviews indicated that he performed as expected in all areas, and was respected by his peers. He demonstrated the following skills..."
Then, near the end, place a phrase such as
-Adam
Evil Facts. (Score:2)
I worked in HR for many years ... (Score:5, Interesting)
Many of the posts here have made an excellent point: As long as you are discussing facts (ie attendance, documented work completion, etc) your are GENERALLY safe (consult lawyer for state by state specifics).
As to the question of verbal vs. written, thats a tougher question. I used to give a lot of "off the record" reviews verbally. Could I be sued for those? Sure, I had to trust the individual I was giving them to (usually HR people at other companies I knew). You can get in just as much trouble for a verbal review as a written one. At that point it just comes down to proof.
Best bet: If you're afraid of repercussions or have nothing positive to say - DON'T GIVE A REVIEW AT ALL.
Check your company policy (Score:1)
I got in trouble like this once (Score:3, Interesting)
I told him that I didn't believe that they had the technical competance to perform the services they were now offering. It was my honest opinion and one that was proved correct in the long run but it got me in all sorts of bother when my client forwarded my comments to them!!
"Be diplomatic not candid" is the advice I came away from that one with.
Re:I got in trouble like this once (Score:2)
"Well, if they believe that their work isn't worth as much, who am I to disagree?"
state your opinion, not facts (Score:2)
don't speculate about future performance, and stay away from facts.
"I liked having Joe Blow as an employee"
vs
"Joe performed better than 50% of our employees"
the second is a claim you may have to prove if it came down to a lawsuit.
go ahead and have a court of law prove that you like or dislike someone.....
BTW, IANAL
Re:state your opinion, not facts (Score:2)
Of course you can be sued, successfully, for your opinion if that opinion constitutes slander or libel. My comments aren't because I have no idea who you are (and no reasonable person would give my pseudonymous comments any weight), but that's not the case if you're listed as a reference for somebody.
This is common sense, but references are one area where people are unusually sensitive. What you see as being light-hearted banter might be perceived as actionable if the person loses a "sure thing" job. Think twice, then think again.
Re:state your opinion, not facts (Score:1)
Libel and slander are **by definition** incorrect factual statements made about a person that cause them certain specific classes of harm (usually related to their ability to earn income).
Libel and slander are NOT applied to opinion. "Joe is an idiot" or "I don't trust Joe" is not really libel. However, the previous poster's second statement, "Joe is better than 50% of his fellow employees" -- IS a factual statement. If it is in fact **incorrect** that is where the danger lies.
Not to mention -- only the libeled or slandered party can sue for slander. (e.g., Joe would have to sue you for those statements).
I have no idea, however, what the actual relevant provisions of law are in relation to the topic poster's problems, which make me think s/he is more concerned about the company suing, rather than "Joe." S/he should definitely talk to HR or a lawyer.
Some people are hesitant to say anything (Score:2, Interesting)
"What did you think of Joe?"
"I can't really talk about him"
"Well, you did supervise Joe for a few years didn't you?"
"Well yes, but I don't really think I should say anything about him"
"Was he a good employee?"
"All I'm going to say is that yes he worked here and yes he worked for me. Take that to mean what you will, but I can't really say more than that"
"Ooooh, so you had problems"
"Sorry, I can't really say more than that, please talk to our HR people if you want anything else regarding Joe"
In UK... (Score:1, Interesting)
Normally, in a situation where you would LIKE to give a bad reference you'd either decline to give a reference at all, or be very specific - eg "John always turned up on time, and his work was of the required standard".
Ask your *employer* (Score:3, Insightful)
If you don't have an employer, ask your lawyer.
(If you don't have a lawyer, and you live in New Jersey, I'll be happy to recommend mine. Verbally, of course.-)
Evidence of wrong forum (Score:5, Insightful)
Evidence that this is the wrong forum in which to ask this question is the fact that, of the people who actually responded with advice, about half say, "only give opinions" while the other half say, "don't give any opinions, only verifiable fact."
Try Findlaw [findlaw.com] for informal legal advice with some hope of accuracy and/or consistency.
On a potentially humorous note, I heard about someone in the banking industry who had been ripped off by a former employee. The employee actually had the gall to put her name down for a recommendation (without asking her, of course). So she replied, "I cannot recommend him too highly," and left it at that. Hmm... What do you suppose she meant by that, anyway...
And now for the IANAL-but-I-play-one-on-TV advice: AFAIK, not only can either party sue you for the contents of your letter, but another party can sue you over problems caused by the employee if misrepresentations are found to have been made.
I read about a case in CA where a high school student (allegedly molested by her principal) successfully sued the writers of recommendation letters for the principal because he had been accused of sexual harrassment before, and they failed to mention it. Of course, if they had mentioned it, the pricipal probably would have sued them.
Also, if you are the ex-employer, be even more carefull. In some states, at least, you are only allowed by law to verify the term of the employee's employment at your company, and nothing else.
Re:Evidence of wrong forum (Score:1)
Clearly she has read "Lexicon of Intentionally Ambiguous Recommendations" by Robert Thornton.
From the book (on incompetence):
"I most enthusiastically recommend this man with no qualifications whatsoever."
"All in all, I cannot recommend this person too highly."
couple options (Score:1)
2) do it and just say nice things. and possibly let your consious get to you.
3) let the person you know read it over and decide if they are willing to have that used as a refrence.
Don't do it....no liability (Score:1)
Re: Employee reccomendations (Score:1)
Does this help any?
from lawguru.com (Score:3, Informative)
http://www.lawguru.com/cgi/bbs/mesg.cgi?i=77816
overly paranoid (Score:1)
This is considered overly paranoid now.
Do NOT give written or oral references, period (Score:1)
If you say anything useful, you are opening yourself up for a lawsuit.
Be careful about this: you know that if you say "Fred is a crook who embezzled funds," you are facing a lawsuit from Fred, but even a POSITIVE reference can be a problem, if the hiring company decides that you concealed the employee's known problems (for example, praising the fellow's work but failing to disclose your knowledge of his DUI convictions and his embezzlement).
I'm not an employment law specialist, but the usual advice is to either say NOTHING AT ALL, or take only a slight chance by confirming only the dates of employment and perhaps the official job title (but beware even that, if your company has ever issued business cards or web-site staff lists where titles differ from the official title listed in the personnel file). And darn it, even the dates of employment can be fuzzy, if it turns out that your file shows that employment ended on August 8, 2001 but in fact Fred was given a continued salary in order to keep him from going to work for a competitor until at least January 15, 2002.
We all want to be helpful, and we all know that if everyone worries about lawsuits, nobody will ever say anything about anyone. But employment-related lawsuits are filed every day, and quite often they are fired by people who know the suit is groundless but they know they will likely collect a nice $10,000 or $20,000 settlement because it would cost $50,000 or $150,000 to litigate the case.
Check your insurance policies -- you might be breaching the terms of one of your policies if you give references.
The bottom line: whenever you give a reference, you are opening yourself up to legal risk, and there is absolutely no benefit to you from giving the reference. Heck, the guy calling you for the reference may even refuse to give references when people call him!
Opinions vs. Facts vs. Lawsuits (Score:5, Interesting)
Life isn't fair, and employment is a terribly sensitive subject. I don't think there is any employment-law attorney who would recommend that you share any opinions about former employees, ever, or that you share any facts other than dates of employment and maybe title.
I think some employers do ask the former employee for some kind of signed release -- basically, saying "if you want us to give a reference, you must waive your right to sue us if you disagree with out reference." I doubt that such a release would be effective unless you attached the text of the written reference for the employee to accept or reject, and then if people know of this policy, they would just assume that any employee who didn't sign the release must be trouble, and now there's another implied negative statement.
This kind of crap is, of course, the reason I gave up litigation, and eventually the practice of law entirely.
Is this for real? (Score:3)
From my non-American perspective, this sounds totally bizarre. Do people in the U.S. really get sued for recommending employees who don't work out?
I mean I can imagine getting sued for putting my signature on something that's clearly wrong. If the person wasn't really my employee at all, for example. But for a recommendation?
Re:Is this for real? (Score:3, Insightful)
It is bizarre. This kind of unfair and predatory practise by American lawyers and their clients will at some point make living (and making living) in the US socially more expensive than the high taxes so often moaned about in Europe. Better to have taxation by the government for the good of public services, than taxation by millions of blood-sucking opportunistic agents (corporations and their lawyers) needing their daily fix!
In my not so humble opinion the American people has subscribed to some quite questionable values when it is generally accepted that you are entitled to a renumeration every time your fellow man has erred and not been vigilant enough. Cutting some slack would be a sensible thing to do, but alas.
YES!!! (Score:1)
-- Tim
written recommendations (Score:2)
There's a reason many companies have adopted a no recommendation policy, and it's because, you guessed it, you can get sued for ANYTHING in the good ole U.S. of A.
Re:written recommendations (Score:2)
Don't worry (Score:1)
FROM THE DESK OF THE EVIL HUMAN
RESOURCES DIRECTOR:
Performance Appraisal for Mr. Cowboy Neal:
His worth to the company can only be imagined. Many employees have indicated that they are eager to comment on his work and he never appears stressed about his work. For completeness I should mention that he appears ever productive and has been seen dropping in at off hours and he knows the value of office equipment. Mr. Cowboy Neal handles assignments with unlooked-for creativity. It would be accurate to say that Mr. Cowboy Neal sets a compelling example for the younger employees and his work sets him apart from his peers. His core values show through in his work and his future with this company is not in doubt.
* In Strict Confidence *
reference info (Score:1)
Written references last, e-contacts don't. (Score:1)
Outside of the tech world, written references are more the norm. One of my housemates has beautiful collection of written references from her time serving in a political office. What do I have? A collection of email addresses and cell phone numbers. In three years her references will still be worth something, while mine likely won't.
-Chris
Here's the catch-22... (Score:1)
So what do I do in such a case? I think I may have lost a couple of jobs due to failure to provide a written recommendation above and beyond printouts of job evaluations (which is all I get).