Employer References & Law Suits

["Sandy Perle" <sandyfl@ix.netcom.com>]

As a supervisor at FPL I was often asked to provide references for a 
current employee or a previous employee. Our Human Resouces 
Department held many training classes stating that we were not 
allowed, by law, to provide any negative information regarding the 
employee, that we could be sued for discrimination and harassmant, if 
the employee was not offered the position. Now we have a case, 
recently upheld by the Calif. Supreme Court that states that if 
"negative" information isn't provided to prospective employers, that 
you can be sued! This is a 180 degree turn-about. I am providing this 
article for information and enlightenment. We, in the nuclear 
industry, could fall under this, especially if it is adopted by many 
other states. We deal with drug testing, MMPI testing, etc. 
-------------------------

SAN FRANCISCO  -- An employer who sends a
glowing letter of recommendation can be sued for not mentioning
misconduct -- like child molesting -- that could endanger others,
California's highest court ruled Monday.

The Supreme Court unanimously reinstated a lawsuit brought by a
teen-age girl who claimed she was molested by Robert Gadams, vice
principal of Livingston Middle School, in his office in 1992, when she
was 13. Gadams later pleaded guilty and went to jail.

The girl's lawyer, Scott Righthand, said the ruling "goes a long way
to protect the children of this state." But attorneys on the other
side said it would discourage employers from writing letters of
recommendation at all.

In addition to Gadams and the school, the girl sued three school
districts where he once worked.

According to the suit, the districts had sent letters of reference to
the Livingston district praising Gadams -- two of them singling out
his work with students -- without mentioning he had been accused of
sexual misconduct with students in each district. Twice he had been
forced to resign, the suit said.

The districts denied any misrepresentations in their letters, and at
least two of them said they had no knowledge of misconduct by Gadams.
They argued that even if they knew, they had no legal obligation to
mention it.

A lower court threw out the lawsuit. But the Supreme Court disagreed.

While an employer normally has no duty to disclose negative
information about a former employee, it must include such material to
avoid a misrepresentation that could expose others to physical harm,
the court said.

The letters praising Gadams amounted to a testimonial to his fitness
to deal with female students, the court said.

Lawyers for the districts said the ruling would hurt employees as well
as employers.

"The court has basically told employers, 'Don't give references. Even
if you have no facts to support any negative references, if the person
whom you refer later commits a tort you stand a chance of getting
sued,"' Robert Rosati said.

The lawyer said the ruling would apply particularly to jobs with a
potential of causing physical injury to others, such as doctor,
teacher or heavy equipment operator.

"I can't speak for employers throughout the state, but I would imagine
a lot of them, if they couldn't say anything good about the employee
without having to say something bad, they'd probably opt for saying
nothing," said C. Michael Carrigan, a lawyer for another district
where Gadams worked.

Sandy Perle
Technical Director
ICN Dosimetry Division
Office: (800) 548-5100 x2306 
Fax: (714) 668-3149

E-Mail: sandyfl@ix.netcom.com    

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