David Shulick : Employers Should Provide References with Care

As a civil litigation attorney who specializes in, among other things, employment law, David Shulick is very knowledgeable when it comes to certain practices that can land an employer in the defendant’s chair. One of these issues is the practice of providing job references. While providing job references is a routine practice for the application process and it not even considered obligatory in most cases, it is an issue that the employer should treat with care. What seems like a simple process is also a very sensitive one that has gotten employers into trouble in the past for providing too little, or even too much information.

One of the most cited examples in regards to this issue can be seen in the decision that concluded the Randi W.v. Murdoc Joint Unified School District case. In this particular case, a former employee of a school was dismissed due to sexual misconduct; and the school failed to disclose that information when responding to a reference request made b another school. The new school had not learned of their new employee’s misconduct until he sexually assaulted another student; which, at that point, prompted a lawsuit against the employee’s former school for providing a misleading reference.

In most cases that involve job references, the employer is accused of tortuous interference with business prospects, defamation or misrepresentation. While giving the employer an overly positive reference, such as in the example above, could be considered a case of misrepresentation, the former two charges can happen when giving a negative reference and can be viewed as an ac f malice towards that employee, especially if the information is in any way misleading.

For these reasons, employers should be especially careful when providing a job reference to another employer. One of the best practices is to remain completely neutral in presenting the facts; however the facts that you chose to present should also be treated with care.

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