Handling Requests for Job References

by Fred Hartmeister

Requests for employment reference information often create a dilemma for school administrators.

On one hand, they appreciate the importance of obtaining complete, detailed, and accurate background information from previous employers when they are engaged in the hiring process. On the other, they fear the threat of being sued by their own former or soon-to-depart employees if they release information that is challenged as being defamatory. Thus, many administrators are reluctant to be totally forthcoming when asked to provide such information.

Fortunately for school leaders and other employers in a growing number of states, legislators are developing statutory protections to resolve this employment reference paradox. Generally, these shield-law statutes either have extended "qualified privilege" or immunity defenses to cover communications made in good faith and without malice or have raised the standard of proof for plaintiffs to prevail in defamation suits against ex-employers.

General Guidance

Now is an opportune time for school administrators to revisit how they and their school districts handle reference requests for information about former and soon-to-depart employees. Although summarizing the wide variety of statutory and related provisions without overgeneralizing is impossible, the following points should be considered:

* Does your state have a shield law?

Currently, 21 states do, and if yours is one of them determine whether the statute governs all current or former employees or whether it applies only to terminated employees. Does your statute define job performance broadly (e.g., in terms of attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, and disciplinary actions) or narrowly (e.g., only information that is documented in the individual's personnel file)? Ascertain whether your district's current policies comply with procedural requirements incorporated in the relevant statute.

* Provide references only to persons who have a legitimate need for the information.

Verify the identity of persons making reference requests. Document all inquiries (both verbal and written) and preserve records of the information disclosed. Train all personnel in the proper techniques for handling requests for employment information and double-check to ensure that internal practices are followed consistently.

* Truth is a complete and absolute defense to a defamation claim.

This is so even within the context of what might be construed as a disparaging statement. Stick to verifiable, objective, and factual statements about job performance. Avoid subjective generalities, innuendo, half-truths, or gratuitous comments about such things as personal appearance, professional ambitions, or character traits. Similarly, avoid statements that may be viewed as discriminatory or that may violate the employee's civil or constitutionally protected rights.

* Obtain a signed release from the employee.

This authorizes you to release information to prospective employers who may inquire.

* Confidential settlement agreements with former employees may not be iron-clad.

If challenged, such agreements may be found to violate public policy, open records statutes, and mandatory reporting laws.

* If in doubt about how to respond, seek the advice of competent legal counsel.

Like most school administrators, attorneys usually operate most effectively in a preventive role rather than in a reactive posture.

A Case to Consider

Illustrative of several of these points is a case the California Supreme Court decided in late January (Randi W. v. Muroc Joint Unified School District). In Randi W., the court considered a situation in which administrators in three different school districts wrote letters of recommendation for a former employee they had each supervised in their respective districts. The employee subsequently was accused of sexually molesting a female junior high student in his most recent position as an assistant principal in yet another school district. The assistant principal ended up pleading guilty to unlawful touching of a minor.

Among other things, the 13-year-old plaintiff alleged that the recommendation letters written by the former administrators failed to disclose known or reasonably suspected acts of student sexual molestation previously committed by the employee in his prior positions of employment. After expounding on the former employee's favorable qualifications and abilities, each of the written recommendations concluded with statements along the lines of "I wouldn't hesitate to recommend Mr. [* * *] for any position!" and "I recommend Mr. [* * *] for an assistant principalship or equivalent position without reservation." None of the letters said anything about the employee "having been forced to resign under pressure" or "being the subject of sexual harassment-type allegations" that the plaintiff now contends was actually the case in each of his former positions.

The fundamental issue in Randi W. was whether failing to disclose relevant negative information about a former employee constituted negligent misrepresentation or fraud. Pursuant to the allegations in this case, all seven members of the California Supreme Court concluded that liability may be imposed since the recommendation letters amounted to "an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a prospective employer or third party."

The case also raised questions surrounding the alleged failure of former employers to report suspected indiscretions under the state’s mandatory child abuse reporting statutes. Here, however, the court split 4-3 and concluded that in this instance the defendants cannot be held liable for negligence per se.

On at least one level, the case boils down conceptually to "telling the truth" versus "telling the whole truth." Although the case is of primary significance to educators in California, the outcome ultimately may prove to have a significant impact nationwide.

Fred Hartmeister is assistant professor and educational leadership program coordinator, Texas Tech University, Lubbock, Texas.