Fear of Lawsuits Keeps Employers’ Lips Zipped on References

Imagine this: You’re applying for a job. You’ve been a productive, respected employee at your old company for years.

But when your prospective employer calls for references, your boss won’t say anything more than yes, you’re an employee, and how long you’ve been one.

Why this work world equivalent of “don’t ask, don’t tell”? It’s because many employers have been taken to court by former employees alleging they were defamed in references. In other cases, employers have been sued for not mentioning that a former worker had a problem--such as violent behavior.

“Companies are scared of being sued,” said Barry Lawrence, a spokesman for the Society for Human Resource Management, based in Alexandria, Va. “As a result, no one’s getting information. This hurts good employees, because the best indicator of future performance is past performance.”

In an effort to give employers another legal protection besides the hard-to-defend one of honesty, state legislatures have stepped in. Thirty-four states have considered legislation that says employers who make good-faith efforts to be honest in references--even if they are occasionally wrong--are protected from suits.

Without these laws--and even in many cases despite them--employers are reluctant to give any information beyond name and employment dates for fear of suits that, in most cases, allege discrimination and defamation.

Twenty-six states have passed reference-check laws since 1993. Eight more states have considered similar bills this year.

A case in California, where a reference-check law took effect in 1994, illustrates the pitfalls for companies in providing references.

In January, the California Supreme Court held that a school district could be sued for not telling another school district that a prospective assistant principal had twice been forced to resign over allegations of sexual misconduct.

Lawyers for the plaintiff--a 13-year-old girl who alleged that the assistant principal molested her--said the Muroc School District was liable for “failing to use reasonable care in recommending former employees,” according to court documents.

The Muroc district recommended its former official as “an upbeat, enthusiastic administrator who relates well to the students” but never mentioned that in Muroc and other districts the assistant principal had been accused of, and disciplined for, “sexual touching” and other misconduct.

Muroc recommended the administrator, who was never charged criminally, “for an assistant principalship or equivalent position without reservation.”

“These representations were false and misleading in light of defendants’ alleged knowledge of charges of . . . repeated sexual improprieties,” the California high court said.

The decision has left human-resources managers unsure of what they should do.

“The feeling is that you’re damned if you do and damned if you don’t,” said Regina Maciula, director of administration for Wendel, Rosen, Black & Dean, a law firm in Oakland. “There are so many laws, and it’s so risky; you have to be extremely careful.”

Unless the reference checker asks a direct question, Maciula said, “our policy is only to give name, rank and serial number.”

Still, some employers and human-resources professionals think the new reference protection laws are a step, if a very small one, in the right direction.

These laws “raise the bar of protection when an employer gives a good-faith reference,” Lawrence said. “Wherever the bar is, you have to make sure you raise it a little higher.”

“I was pleased when the [California] law passed,” Maciula said, “because now if I’m asked a direct question, I’ll give an answer. [When the law passed] I felt a little more protected.”

Many employers, including Maciula’s, seek a measure of legal protection by hiring companies to run background checks on potential employees.

“We’re hoping that will protect us,” Maciula said, although she conceded that it still might not be enough to avoid a suit.