Bette Robin, DDS, JD 877 DrRobin
SELECT PRACTICE SERVICES, INC. / DENTAL PRACTICE SALES
SELECT PRACTICE SERVICES, INC. / DENTAL PRACTICE SALES
RISKY RECOMMENDATIONS
If you think you should give a prospective employer a letter of
recommendation on one of your former employees, think again. This
article is an update of the case of Randi W. v. Moroc Joint Unified
School District (97 Daily Journal D.A.R. 965), an appellate court
decision I reviewed in an earlier Bulletin . The California Supreme Court
affirmed on January 27, 1997 that that Fresno school district may be
sued for fraud and misrepresentation for failing to disclose known
unfavorable facts about a former employee in a written “glowing letter”
of recommendation.
Among the defendants in this lawsuit were three school districts who
gave the vice-principal employee unreserved and unconditional letters
of recommendation to the new school employer. None of the previous
schools disclosed known charges against the vice-principal of
molesting students. Randi W., a thirteen year old girl at the school the
vice principal moved to accused him of sexually molesting her. The vice-
principal pleaded guilty to unlawful touching.
THE COURT’S DECISION
The California Supreme Court concluded that “the writer of a letter of
recommendation owes to prospective employers and third persons a
duty not to misrepresent the facts in describing the qualifications and
character of a former employee, if making these misrepresentations
would present a substantial, foreseeable risk of physical injury to the
prospective employer of third person.” The Court clearly rejected the
defendant-employers’ arguments that the letters contained no “actual
misrepresentations,” but amounted only to “mere non-disclosures”
because they neither discussed nor denied prior complaints of sexual
misconduct by the employee. The Court called this “misleading half-
truths” and admonished employers that, “having undertaken to provide
some information regarding the former employee’s credentials and
character, they were obliged to disclose all other facts which ‘materially
qualify’ the limited facts disclosed.” In other words, if you volunteer
information, you must “complete the picture” and disclose all material
facts!
Ordinarily, a recommending employer will not be held accountable for
failing to disclose negative information about a former employee,
unless 1) there is a ‘special relationship’ between the former employer
and the injured party, or 2) the recommendation amounts to an
‘affirmative misrepresentation that also presents a foreseeable and
substantial risk of physical harm to a prospective employer or third
person. If the only potential risk involves economic harm, as in the case
of embezzlement, you are unlikely to be held liable. On the other hand, if
a former employee’s drug use could endanger patients and you provide
only an unqualified recommendation, you may be liable to someone
who gets hurt after the employee is hired in reliance on your statements.
Further, new theory of liability for references has arisen in California in
several other cases. This theory can be utilized by employee even if you
give out no information at all. The theory is defamation by “compelled
self-publication” which means employees have successfully argued that
were compelled to tell prospective employers about allegedly untrue
information contained in their personnel file. The idea is that if she
doesn’t reveal the information, the prospective employer will discover it
anyhow when he calls for references. Including your policy on
references in your personnel
manual should provide you with an adequate defense to a claim such
as this.
WHAT YOU SHOULD DO TO AVOID LIABILITY
1. Again, Just Say No. Do not give written letters of recommendation or,
2. Strictly limit your letters of recommendation to verifying employment
position, salary and dates of employment.
3. If you insist on writing a letter, write a full disclosure letter, revealing
all relevant positive and negative facts. Former employers are
protected from defamation lawsuits and other tort claims by law (Civil
Code section 47 (c), adopted Jan. 1, 1995), as long as the letter is
provided in response to a prospective employer’s inquiry and is not
malicious.
In any case, you can lessen your potential liability by adopting uniform
procedures for responding to requests for information about former
employees and by requiring that all requests be in writing.
© Bette Robin, DDS, JD 4/97
recommendation on one of your former employees, think again. This
article is an update of the case of Randi W. v. Moroc Joint Unified
School District (97 Daily Journal D.A.R. 965), an appellate court
decision I reviewed in an earlier Bulletin . The California Supreme Court
affirmed on January 27, 1997 that that Fresno school district may be
sued for fraud and misrepresentation for failing to disclose known
unfavorable facts about a former employee in a written “glowing letter”
of recommendation.
Among the defendants in this lawsuit were three school districts who
gave the vice-principal employee unreserved and unconditional letters
of recommendation to the new school employer. None of the previous
schools disclosed known charges against the vice-principal of
molesting students. Randi W., a thirteen year old girl at the school the
vice principal moved to accused him of sexually molesting her. The vice-
principal pleaded guilty to unlawful touching.
THE COURT’S DECISION
The California Supreme Court concluded that “the writer of a letter of
recommendation owes to prospective employers and third persons a
duty not to misrepresent the facts in describing the qualifications and
character of a former employee, if making these misrepresentations
would present a substantial, foreseeable risk of physical injury to the
prospective employer of third person.” The Court clearly rejected the
defendant-employers’ arguments that the letters contained no “actual
misrepresentations,” but amounted only to “mere non-disclosures”
because they neither discussed nor denied prior complaints of sexual
misconduct by the employee. The Court called this “misleading half-
truths” and admonished employers that, “having undertaken to provide
some information regarding the former employee’s credentials and
character, they were obliged to disclose all other facts which ‘materially
qualify’ the limited facts disclosed.” In other words, if you volunteer
information, you must “complete the picture” and disclose all material
facts!
Ordinarily, a recommending employer will not be held accountable for
failing to disclose negative information about a former employee,
unless 1) there is a ‘special relationship’ between the former employer
and the injured party, or 2) the recommendation amounts to an
‘affirmative misrepresentation that also presents a foreseeable and
substantial risk of physical harm to a prospective employer or third
person. If the only potential risk involves economic harm, as in the case
of embezzlement, you are unlikely to be held liable. On the other hand, if
a former employee’s drug use could endanger patients and you provide
only an unqualified recommendation, you may be liable to someone
who gets hurt after the employee is hired in reliance on your statements.
Further, new theory of liability for references has arisen in California in
several other cases. This theory can be utilized by employee even if you
give out no information at all. The theory is defamation by “compelled
self-publication” which means employees have successfully argued that
were compelled to tell prospective employers about allegedly untrue
information contained in their personnel file. The idea is that if she
doesn’t reveal the information, the prospective employer will discover it
anyhow when he calls for references. Including your policy on
references in your personnel
manual should provide you with an adequate defense to a claim such
as this.
WHAT YOU SHOULD DO TO AVOID LIABILITY
1. Again, Just Say No. Do not give written letters of recommendation or,
2. Strictly limit your letters of recommendation to verifying employment
position, salary and dates of employment.
3. If you insist on writing a letter, write a full disclosure letter, revealing
all relevant positive and negative facts. Former employers are
protected from defamation lawsuits and other tort claims by law (Civil
Code section 47 (c), adopted Jan. 1, 1995), as long as the letter is
provided in response to a prospective employer’s inquiry and is not
malicious.
In any case, you can lessen your potential liability by adopting uniform
procedures for responding to requests for information about former
employees and by requiring that all requests be in writing.
© Bette Robin, DDS, JD 4/97
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DrRobin@BetteRobin.com
17482 Irvine Blvd., Suite E
Tustin, CA 92780
Tustin, CA 92780
877 DrRobin
Tele:
714.421.4407
Fax:
714.398.8808