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Can You Be Sued for Written Employee Recommendations? 64

Posted by Cliff from the 10-years-ago-this-would-be-considered-"overly-paranoid" dept.
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."
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Can You Be Sued for Written Employee Recommendations? More

Can You Be Sued for Written Employee Recommendations?

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  • The most important aspect is... (Score:3, Insightful)

    by gartogg ( 317481 ) <DavidsFullName@goog l e . email> on Wednesday February 27, 2002 @06:35PM (#3080884) Homepage Journal
    You have to say things that are verifiable and factual if you want to write it out. Saying that they don't function well with other employees is ok, but it's safer if there are employee complaints against him. Saying he is not a good worker is ok, but only if he repeatedly doesn't show up, etc.

    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)

    by V. Mole ( 9567 )

    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.

    • The answer is simple: Write a truthful recommendastion, and end it with a statement along these lines..
      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)

    by cornice ( 9801 )
    Start every sentence with "My opinion is" and I would assume you're OK. But IANAL...

    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?
  • If there is any way you could be sued then...

    Say something good and it's not true: the company sues you...

    Be honest and say something bad: the employee sues you...

    • You can sue for any reason you want... i.e. someone looks at you funny. Whether it actually goes to court, or wins depends on the grounds you have. If what you say in the letter is true and not defamatory then you won't lose a lawsuit against you if they do decide to sue.

  • Share OBSERVATIONS not CONCLUSIONS (Score:5, Insightful)

    by martyb ( 196687 ) on Wednesday February 27, 2002 @06:50PM (#3080986)

    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)

      by Unknown Poltroon ( 31628 )
      Yeah, kinda like Heinleins fair witness. If asked to describe the color of a house you got "The side of the house facing me appears to be white in color." You never draw any conclusions of your own, you just repeat back exactly what you see in an objective manner. Ive used this sort of method a lot, and its helpful in some situations, especially when you dont like the person. Then you cant get into trouble for slander or what not. Or at least not as easily.
      • This kind of thing happens a lot at stores when you ask if they have more of something in backstock. Instead of the employee just saying "no, we're out" they'll say something like "I didn't see any back there". It just protects that individual.
  • The important thing to remember is that you CAN be sued for anything. Whether or not it will hold water depends on the circumstances. We're a litigation-happy society now. Hot coffee anyone?
  • "Verbal" means "Of, relating to, or associated with words", or, in other words, "using language". Unless your references are to be given in the form of interperative dance, or perhaps charcoal sketches, I imagine that both the written and spoken versions will be verbal.

  • Wrong place to ask, wrong question. (Score:4, Insightful)

    by fm6 ( 162816 ) on Wednesday February 27, 2002 @07:01PM (#3081054) Homepage Journal
    IANAL -- which is why I urge you to talk to one.

    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.

    • ...it's illegal to record phone conversations without mutual consent.
      Actually it depends on the jurisdiction. For intrastate calls in the U.S. it varies quite a bit. Interstate calls may be recorded (last I heard -- it may have changed). Other countries vary. Also remember that phone calls can be routed through multiple states and nations, even if the participants are in the same place, which makes them interjurisdiction calls.

      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.

    • 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

      So don't take any of the above poster's advice.

  • There is plenty of free legal advice out there by real lawyers. Granted, there is the hook, that they all hope to get you as their next client, but nevertheless I think your chances of getting a decent answer are greater there, than here :)

    Check out: Lawguru [lawguru.com]. If you cant find your question in their DB of 35000 questions, they will answer it.
  • You don't have to provide a written recommendation if you don't want to. You should especially avoid doing so if you feel uncomfortable.

    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.
  • Consult a lawyer.

    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 ,"For more detail, please feel free to contact me at (phone)." If they want more detail or a personal perspective they can call you and get that info over the phone.

    -Adam
    • Consult a lawyer.
      Agreed.
      If you don't consult a lawyer, then only write strictly factual, verifiable information.
      You should have quit while you were ahead. One person's verifiable info is another's rumor. Just look at posts to this story!

  • I worked in HR for many years ... (Score:5, Interesting)

    by filtrs ( 548248 ) <(mhilmers) (at) (photonsphere.com)> on Wednesday February 27, 2002 @07:12PM (#3081133) Homepage
    IANAL, but I have taken many HR courses and passed many certifications.

    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.
  • My employer expressly forbids anyone but HR from giving written recomendations. Even then, it's pretty much down to name, rank, s/n. This is to avoid suits from both former employee and their future employers.

  • I got in trouble like this once (Score:3, Interesting)

    by DrSkwid ( 118965 ) on Wednesday February 27, 2002 @07:31PM (#3081233) Journal
    A client emailed me and asked me my opinion of one of my competitors as they had offered him a cheaper deal (two of our previous employee who left and set up on their own).

    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.

  • if they sue you for your opinion, you're protected by your rights to free speech.

    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

    • In my opinion, I'm surprised the police haven't arrested you for fscking your dead mother yet.

      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.

      • dude actually, **you** are wrong. IANALBIUTBAP. (I am not a lawyer but i used to be a paralegal).

        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.
  • I've worked with a few people who weren't willing to comment on current or former employees. I think that a lot of that has to do with working in the public sector though, people tend to be a little sue happy. One thing I have noticed is that people who are hesitant to comment seem much more likely to comment on people who didn't perform/they didn't get along with/etc, although the conversations usually went like this:
    "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)

    by Anonymous Coward
    Over here its illegal (not sure what laws it breaks) to give a bad written reference.

    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)

    by Lumpish Scholar ( 17107 ) on Wednesday February 27, 2002 @08:08PM (#3081436) Homepage Journal
    Your employer probably has a policy on this. Find out what it is; follow it. This is even true if you're working for a different company than the one where you worked with the person in question.

    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)

    by andaru ( 535590 ) <andaru2@onebox.com> on Wednesday February 27, 2002 @09:16PM (#3081685) Homepage
    From the why-are-you-asking-a-legal-question-on-slashdot dept.:

    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.

    • ---"So she replied, "I cannot recommend him too highly," and left it at that."---

      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."
  • 1) dont do it. and dont worry about it at all

    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 give the reference. It is out of the goodness of your heart that you give a reference. At my current work, we don't do references. You can verify the fact that they worked here, the start and stop date, the fact that they no longer work here,job duties/description and possibly a salary range. Oh yeah, only the HR person can do that, if I do it, I can be fired. (Actually I can be fired because I am using up too much of the air while breathing). If you want to give the guy a reference stick to verifable facts that literally can't be disputed, if you're seriously concerned about the legal liabilities.
  • Now im not sure where most of the peopole posting in this forum are from, but if i leave my job, i would EXPECT my employer to give me a written reference, im not quite sure how you come up with voice references being the norm, unless it is a job interview follow up, in which case I would have asked your permission to add you to my Resume as a reference.
    Does this help any?

  • from lawguru.com (Score:3, Informative)

    by Karth ( 14680 ) on Thursday February 28, 2002 @02:29AM (#3082724)
    it looks like this lawyer from lawguru has a real answer: If you want to avoid all sorts of possible legal stupidity, stick to short, factual, and mostly useless information.

    http://www.lawguru.com/cgi/bbs/mesg.cgi?i=778167 01 8
  • "From the 10-years-ago-this-would-be-considered-"overly-para noid" dept."

    This is considered overly paranoid now.
  • If you have no legal duty to give a reference at all, your best practice is to refuse all requests for references. (Of course, your state's law may require certain disclosures about past employment, and some states might provide "safe harbor" laws for certain reference information. That's why you pay money to lawyers.)

    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)

    by markwelch ( 553433 ) <markwelch@markwelch.com> on Thursday February 28, 2002 @04:21AM (#3082948) Homepage Journal
    I'm amazed at the commentary about "opinions" versus "verifiable facts." Every opinion contains implied facts; every fact probably reflects some opinion.
    • You may decide that it is safe to say that Joe was often late for work, since you can prove that he punched in late at least once a week -- but if being on-time isn't important at your company, and you allowed employees to adjust their own schedules, your "verifiable fact" is actually misleading and is essentially a lie (or at least a jury may so decide).
    • Were you satisfied with Joe's work performance?
      • If you say yes, you are representing that he did his job competently, but in fact he is human and he made mistakes, and failing to disclose that is maybe a misrepresentation to the new employer.
      • If you say no, then Joe will pull out the fact that you continued to employ him for 6 years without even a warning, so obviously you were satisfied with his work performance and so you were lying when you said no. (Oh, yeah, and when you pull out the written evaluations showing that he was below-par, he'll say they were fabricated just to defend this lawsuit, he never saw them, and his signatures on the things are forgeries.)
    • You may decide that your opinion that you "just didn't think that Joe was up to the project we were working on" is a safe opinion, but Joe may present the job description showing the project requirements, and he may show that he fulfilled all those requirements, and bingo now your statement was factual.
    • You may decide that it's safe to say that Joe worked from December 1995 through July 2000, and his highest title was Director of Marketing, but then someone pulls out a printout of the sales presentation you gave in 1999 where you identified Joe as "Vice President, Marketing," and Joe is now annoyed that he didn't get the new job because the new employer was shocked that he had misrepresented his prior job as being the VP of Marketing.
    • You say "Look, all I am permitted to say is that Joe worked here from November 1999 to August 2000, and our lawyers won't let me say any more," and of course any sensible person might conclude that there must be something to say, if you actually had to check with your lawyer about it.
    In the case of an employment reference, you must worry about "reading between the lines."
    • With a written reference, your artful wording may be construed to mean something different than you intended. And of course, the written reference is right there in writing, and it's impossible to dispute the words there, though anyone can dispute their meaning -- which means that anyone can turn even the slightest ambiguity into a lawsuit.
    • With an oral reference, it's your word against some stranger's as to what you said. Maybe they "mis-remember" and attribute to you a statement that some other employer said about some other employee. And eventually some jury will make the decision two years from now, and they will assume that you are just lying about what you said to cover your ass.

    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)

    by Ami Ganguli ( 921 ) on Thursday February 28, 2002 @06:51AM (#3083229) Homepage

    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)

      by jibun ( 61650 )

      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.

  • In the US you can be sued for anything PERIOD

    -- Tim
  • As an accredited member of the slashdot bar association, I can say with certainty 'YES!'

    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.

    • In other news today, a man was awarded an OBSCENE amount of money when he WAS NOT given a recommendation by his former employer. "I applied for this new job, you see, and they wanted references," says Joe Nutfuck, "but my old company has a 'no reference' policy. They say it's to avoid potential litigation. It's the stupidest thing I've ever heard." A jury aggreed with Mr. Nutfuck that by not giving a reference, they were unfairly limiting his future career options, and putting a chilling effect onto the economy. Mr. Nutfuck was awarded 50 million dollars in potential future lost wages. A senior HR person at Mr. Nutfuck's former company said, in response to the ruiling, "Jesus H Christ! Damned if you do, damned if you don't, and damned for being damned. I'm moving to Canada."
  • let The Dilbert performance appliance generator [dilbert.com]make the recommendation for you. It doesn't say anything good or bad on the subject:

    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 *
  • Most large companies I've worked for in the past will really only provide employment verfication, i.e. Dates of Employment and final salary and maybe position title/grade. In fact one now makes the person requesting the information has to call a 900 # for a couple of them and pay a fee.
  • I am about to ask for a written letter of recommendation from a past manager. Is there a nefarious reason I want it on paper? Nah, I just don't want his reference potential to atrophy when my ex-employer sells out and he returns to places far off to pursue other work. We were never personally close, and I don't even know if he has a personal email address.

    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
  • I work for a company that under NO circumstances provides more than the proverbial name, rank, serial number, and doesn't allow your supervisor or anyone else to give you written recommendations. Here's the rub: Most employers that I want to work for AND am qualified for, EXPECT a written recommendation. (Certain jobs in state civil service, for example).
    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).

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