Forget for a moment the legal pitfalls you can see. Let’s look at one you might not know exists. It’s hidden in something you may have done multiple times in the past. If you are not careful, your legal woes could come from multiple sources as a result of this.
How often have your written a letter of reference? Most of the time, writing that letter comes with little risk. Maybe somebody you know applied for a scholarship and asked you as a present or former employer to write a letter for consideration by the committee? You have little to worry about but what if you offer to write an outgoing employee a letter of reference for use in a job search? That’s when you have to cover yourself.
We asked a few attorneys to weigh in on how to protect yourself when writing a reference letter.
Make Sure it’s Consistent with the Employee’s Personnel File
Consider this scenario: You have an employee who is average at best that you plan to let go. They weren’t a detriment to the team; you just want to go in another direction. Throughout their time at your company, you’ve kept a record of each time you talked to the person about issues like lateness and poor performance.
You tell them that you’re letting them go and offer to write a recommendation letter for them. You leave out the negatives and focus on the positives giving the person a better chance of finding a new job quickly. Then, a few weeks later, you get notice that the ex-employee is suing you for wrongful termination.
Attorney, Tom Simeone of Washington DC law firm, Simeone & Miller, LLP says, “…being a nice guy and providing a good reference for a not-so-good employee can come back to haunt an employer by contradicting the evidence they may have justifying their termination or sanctioning of the employee.”
In other words, the employee could say, “If I was as good as you said I was in the reference letter, why was I fired?” If the suit is filed, the ex-employee’s attorney will likely ask to see the employee’s personnel file. If the letter and the file don’t align that could be bad news for you.
Related: How to Avoid Hiring Bad Employees
The New Employer Could Sue You Too
It’s not just your former employee that could have it out for you; it could be their new (or most recent ex) employer. If you write a letter that isn’t entirely accurate, and the employer hires the person based on your reference letter, you could be sued if the contents of the letter turn out to be false or misleading. Simeone says, “The firm to whom an employer provides a reference may have a claim if the information is incorrect. While it may not amount to fraud - since that requires intent to defraud and mislead - it could lead to negligent misrepresentation which only requires negligence or a failure to act reasonably.”
A No-Win Situation
If you provide information in your letter that is false, the former employee could sue you for defamation. For that reason, San Diego Attorney Samuel Brotman says, “you generally want to avoid recommendation letters for employees that were either fired or laid off.”
On the other hand, if you refuse to write a letter that could be a problem too. Attorney Moseley Matheson of the North Carolina based Matheson Law Office says, “A former employee may also raise a claim for not providing a reference at all if they can demonstrate it has impeded their ability to find employment in that field.”
Confirm Only the Basics
The best and only way to reasonably protect yourself is to make sure all of the information you provide is based on verifiable fact. Also, don’t provide any more information than is necessary. Attorney Pamela Belyn, of Chicago-based law firm Boodell & Domanskis says, “The general rule is to only confirm the basics, dates of hire, title, last salary, eligibility for rehire (yes or no). It is the cleanest way to avoid future litigation.”
Whatever you commit to paper (or email) becomes evidence. Don’t speak of the employee in a personal capacity and keep the reference short.
The Law Isn’t Universal
Wouldn’t it be nice if every state operated under the same rule of law? It doesn’t, and that’s why if there is any question over what you should include in a reference letter, consult an attorney in your area. The above represents basic guidelines that are applicable to most state statutes but nothing beats the advice of a trusted attorney that knows your individual case.
Related: Top 5 Lies Job Applicants Tell
This article provides general information, only. If you need specific legal advice, you will need to contact an attorney.
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