Damned If You Do

Employers find that providing job references is fraught with risk.

Barry Shanoff

June 1, 2008

3 Min Read
Damned If You Do

Glad to Say, life is thick with choices. Sad to say, sometimes it's hard to foresee the consequences of our picks and preferences. Now and then, it seems to make no difference what we choose to do — we get kicked in the shins either way.

Many employers — and the waste industry is no exception — are getting sued because they said something, refused to say something, or simply forgot to mention an event or detail about former employees. Bad reference, good reference, limited information, no information — it doesn't matter.

Some cases look easy. An employer gives a positive reference to an employee who was convicted of stealing cash from the business. Based, at least in part, on that referral, the employee lands another job where he conspires with others to divert the company's funds into private bank accounts. The new employer would seemingly have a strong case against the previous employer because first-hand information that was obviously material to the hiring decision was omitted. On the other hand, should the new employer have relied only on the reference and not independently checked the criminal history of a new hire?

A bad reference to a prospective employer always has been a crisis waiting to happen. Most employers want to be fair and candid when they talk about a former employee, if only as an application of the Golden Rule — that is, treating other employers as they would like to be treated. However, bosses can't help but think, “Am I or the company going to get sued if I say what's appropriate?”

As the economy tanks, those who are finding it hard to land a job might look for ways to take out their frustration. If they think a former employer has said things that are snuffing out employment opportunities, then they just might think they can vindicate themselves and coax a financial settlement by filing a lawsuit, particularly if a lawyer will take this kind of case on a contingency fee.

Nevertheless, not every bad reference results in bad news for an employer. In Rhode Island, an employee claimed retaliation after her boss gave a reference to a prospective employer, describing her as having “unacceptable work habits.” The case got all the way to the state supreme court, which ultimately dismissed her lawsuit because she could not prove the boss was motivated by malice, and her boss was qualified to assess her performance. [Kevorkian v. Glass, 913 A.2d 1043 (2007)]

How about staying mum after employees leave? Some employers tell new hires that they won't get anything more than confirmation of employment start and end dates. But even saying nothing can create problems. An information-neutral policy can shield individuals with a history of violence or discrimination, which can lead to lawsuits against former employers. Meanwhile, companies seeking to provide a safe workplace can end up defending themselves for hiring people with troubled pasts.

A number of employers have responded to the job-reference bind by requiring would-be employees to sign a statement releasing the employer from any liability for information given to prospective employers and waiving the right to sue. Still others have beefed up their own background checks on job applicants.

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