Positive reference gets company sued
June 17, 2008 by Sam NarisiPosted in: Attracting talent, Latest News & Views, Law
Companies often withhold negative information about former employees to avoid defamation claims. But here’s how being too positive can cause legal problems.
An anesthesiologist was fired after he was caught using narcotics at work. But when he tried to get another job two months later, his old boss told the new employer he was “an excellent clinician” and “would be an asset to any anesthesia service.”
After he was hired by the new company, he came to work high and almost killed a patient. The patient sued and won $8 million. So that company sued the man’s old employer — and won.
Reference check liability
A lot of companies choose not to give references at all, and just confirm employment dates and titles. If that’s what the supervisor in this case had done, the company might’ve been in the clear.
But the court made a distinction between not giving a reference and knowingly giving a false reference. As the judge said, once the supervisor volunteered to give any information about the employee’s performance, he was obligated to tell the whole truth.
Cite: Kadlec Medical Center v. Lakeview Anesthesia Associates
September 2nd, 2008 at 9:25 am
I absolutely agree with the court’s decision in this case. I’ve always been kind of on the fence with what information should or should not, conscienably be provided in a reference check, particularly as it relates to something that could endanger other people. It’s completely understandable that many employers generally disclose the bare minimum in order to avoid legal hassles. But, every once in a while there is something so important that you could be jeopardizing someone’s life or livelihood by not being forthcoming (such as this case). I believe there really should be some exceptions to the “mindset rule” of minimal disclosure. For me it’s a matter of conscience. In spite of knowing that disclosure of critical facts could result in a law suit I believe it should be done when non-disclosure could result in the loss of life. It’s sad that people have become so fearful of lawsuits that they sometimes look the other way instead of doing what’s right. The bottom line is that I applaud the judge for recognizing that the past employer’s behavior was far worse than lack of disclosure. This employer deliberately endangered people’s lives by “lying by ommission” and by misleading the new employer with a purely positive performance reference. There’s simply no excuse for this.