Should you give employee references?

July 1, 2004

Letters of recommendation about former employees can put you in legal hot water?unless you follow these guidelines

 

EMPLOYEE REFERENCES

Should you give employee references?

Jump to:Choose article section... Perspective on the legal peril Going beyond name, rank, and serial number What if it's someone you've fired? Phone references and questions about rehiring

By Gail Garfinkel Weiss

Letters of recommendation about former employees can put you in legal hot water—unless you follow these guidelines.

Your receptionist lets you know that a Dr. Smith is on the phone, and he's checking the references of Jane Miller, a former staffer. You and the other employees in your ob/gyn practice are thrilled that Jane no longer works for you. She was chronically late, sloppy, rude to patients, and was about to be fired when she quit, ostensibly for family reasons, about a year ago. "What should I tell Dr. Smith?" the receptionist asks you. This article will provide you with answers to that question that won't get you into legal trouble.

Perspective on the legal peril

As an employer, you're facing a common but troubling scenario. You've heard about people being sued for defamation of character for providing a negative reference. You don't want to harm Jane, but you don't want to let Dr. Smith think she's a gem when she's really a lump of coal. Should you let Dr. Smith know how you really feel?

There's genuine legal peril in providing a candid letter of reference about a former employee. That's why most consultants urge extreme caution. Some attorneys are even more blunt: To protect yourself fully, don't write a negative letter or a positive one.

Others try to steer you through the rocky course of informing colleagues about the employee without sparking a lawsuit. First the naysayers.

"You can only get in trouble writing letters of reference: You never get any reward," says attorney Lawrence Vernaglia of Hinckley, Allen & Snyder in Boston. "A former employee who thinks you undermined her chances of landing a job can sue you for defamation and make you miss time in the office and spend a lot of money on lawyers. So we tell our clients to send a letter that simply confirms basic employment data" (Figure 1).

 

 

"You don't say why Ms. Wood left. You don't indicate whether she resigned or was fired. You don't characterize her as a good or bad employee. You don't recommend hiring or advise against doing so," Vernaglia says.

So why can't you write letters about successful employees? In Vernaglia's view, if you only write reference letters for staffers who made the grade, your refusal to write a letter will be seen as a tacit thumbs-down, and could invite reprisal.

Going beyond name, rank, and serial number

So what's a conscientious physician or office manager—who wants to help colleagues make informed hiring choices and isn't comfortable with the aforementioned "name, rank, and serial number" strategy—to do? At a minimum, don't say anything you can't prove, and under certain circumstances, just say No.

"I think supervisors are more willing to provide employee references than their attorneys would advise," says Rosemarie Nelson, a Consultant for the Medical Group Management Association in Englewood, Colo.

Alec Ziss, Practice Administrator at Weston Pediatric Physicians in Weston, Mass, is one such supervisor. "I deal with colleagues in the way I hope they'll deal with me, so when people call me, they get an honest assessment," he says.

You're probably on safe ground, says Jeffrey J. Denning, a consultant in La Jolla, Calif., if you provide references based on written performance appraisals, "not speculation or guesswork on what the employee might have done." Nelson advocates a balanced approach: focusing on candidates' strengths and what they bring to the practice, and acknowledging candidates' inevitable weaknesses, so the potential employer can make a sound judgment. If someone can't handle the telephone, for instance, that might not matter because other employees do that task. Nelson also touts the virtues of brevity. "I think reference letters can be helpful in terms of what isn't said," she points out (see "Sample reference letters" for sample letters).

Being able to verify what you say is a must. Becke Umberger, who is Office Manager for North Canton, Ohio, internist and pediatrician Barbara Volk, admits to "over-documenting." "I keep a file on each employee and it contains performance reviews, incident reports, and, if applicable, termination reports."

You're on safer ground, attorney Larry Vernaglia notes, if the reference letters come from you personally—that is, you don't use the practice's letterhead. "There's no need to expose your entire group or hospital to liability," he says.

Denning offers these additional guidelines:

1. Stick to issues relevant to the job.

2. Don't volunteer information that wasn't asked.

3. Don't provide information unless the employee signs a consent form. A typical consent form says, "I hereby authorize [former employer] to release employment information to [prospective employer]. I also release [former employer] from all liability in responding truthfully to inquiries connected with my application."

4. Don't exaggerate. "Be careful not to embellish the reasons for discipline or termination," Denning says. "For example, accusing a bookkeeper whose deposit doesn't balance of embezzlement is asking for trouble."

Another caveat: Never write a false-positive reference letter. Giving a favorable report on an employee who poses a danger can put you in legal trouble as easily as writing an unfavorable letter. Denning cites the case of Randi W. v. Muroc Joint Unified School District, in which several school officials were sued after providing glowing references for an administrator who had been involved in several incidents of sexual misconduct. The suit was filed by a 13-year-old girl who allegedly was molested by the man and who maintained that he would never have been hired by her school had his previous employers been candid.

The California Supreme Court, in affirming the lower court ruling for the plaintiff, indicated that "liability may be imposed if, as alleged here, [a] recommendation letter amounts to an affirmative misrepresentation presenting foreseeable and substantial risk of physical harm to a third person."

What if it's someone you've fired?

Don't assume that an employee you fired won't ask you for a reference. Becke Umberger remembers getting such a request from an employee she had just terminated. "The tears were still running down her face when she asked me to write a letter," says Umberger, who refused to comply.

She did the right thing, according to Jeff Denning. "If you're asked to give an employment reference for an employee you terminated, it's best to decline," he says. "And don't try to have it both ways. If you sort of wink into the phone and say, 'On the advice of legal counsel we have no comment on this employee,' that could be construed as an unfair negative reference. Just don't respond."

Ziss generally clams up if he has nothing positive to say. "I got a call that I decided not to return regarding an employee who had adequate technical skills, but disastrous interpersonal ones," he notes.

If the silent approach doesn't appeal to you, take preemptive action. Let employees review their personnel files at termination, Denning advises, and tell them that the practice will respond truthfully if used as a reference. "For example, if someone was chronically late—and you have the time records to prove it—you can tell that employee, 'If I'm asked about your reliability I'm going to have to mention your tardiness and how we weren't able to accommodate that here."

Of course, not everyone you've fired is a lost cause. "I often try to get a terminated employee to submit a letter of resignation so I don't have to say the person was fired," Ziss says. "If I'm contacted about a reference, I might note that this wasn't the right job for her, or that she might respond better in a different setting or to more active supervision. Sometimes an employee who gets fired from one job is sufficiently chastened to do better the next time."

Phone references and questions about rehiring

Bad written references are rarities because most people are savvy enough to seek references they know will be favorable. Indeed, Becke Umberger acknowledges that in 10 years as an office manager she's never seen a bad letter of recommendation.

So in an effort to learn more about potential hires, physicians and office managers often phone former employers. Consultants are divided on whether a telephone reference is safer than a written one. "It's a lot easier to defend stuff that's not in writing," Denning says. But all agree that you shouldn't divulge information unless the inquiry is being made for legitimate business purposes. Make sure, also, that you know whom you're talking to.

The telephone question-and- answer session typically ends with the inquiry, "Would you rehire this person?" "I think that's a fair question and you should answer it honestly," says Rosemarie Nelson. "The answer can be a simple 'Yes' or 'No', or it can be qualified to indicate that you'd rehire under a particular set of conditions—such as an agreement to seek additional training."

Alec Ziss agrees, although he says, "when someone calls me for a reference I tend to be frank, and by the time I finish talking about a former employee, it's obvious whether I would or wouldn't rehire that person."

Denning, too, has doubts about the question's usefulness. "The purpose of an employment reference is to provide information about the candidate," he says. "Speculation about whether she's right or wrong for you isn't necessarily relevant. You could say, 'I wouldn't rehire Mary because my practice is too fast-paced for her but she'll probably do fine in a more laid-back setting.' "

Sam Platia, Administrator of Northwestern Medical Center in New Tripoli, Pa., has no problem with the question, but sees no need to embellish his response. "I answer 'Yes' or 'No' without elaborating," he says, "and let the recipients interpret the information as they wish."

MS. WEISS is Senior Editor of Medical Economics magazine, where this article previously appeared.

Sample reference letters

Most consultants agree that you should politely decline to write a reference letter if you can't offer more than a tepid endorsement. If a second-rate employee still insists on a letter, terseness speaks louder than a list of grievances. Judy Capko, a consultant in Thousand Oaks, Calif., offers the examples shown here.

A positive reference letter (see figures), on the other hand, should consist of three or four paragraphs and contain vivid detail. Begin by indicating how long you've known the person and in what capacity. Describe his/her skills and performance, and indicate outstanding attributes, significant strengths, areas of growth, contributions to your practice, and significant projects.

Additional reference-letter advice:

1. Don't mention characteristics that can be the basis of a discrimination lawsuit, such as race, religion, national origin, gender, age, marital or parental status, disability, appearance, or political point of view.

2. If you make negative comments, back them up with specifics.

3. Avoid bland words, such as decent, satisfactory, and nice.

4. Use emphatic words, such as creative, imaginative, dependable, articulate, efficient, and innovative.

To Whom It May Concern:

Mary Davis was employed by Moreland Women's Health Center for the past 2 years.

Mary worked in our medical records department. Her primary tasks consisted of preparing new charts, photocopying, filing, and pulling charts for appointments and nursing calls.

We wish Mary well as she seeks new employment opportunities.

Sincerely,

To Whom It May Concern:

Rupert Medical Group has employed Susan Jones for more than 5 years. She is leaving her position to move to the West Coast. Susan has been an outstanding employee and is an asset to the medical field.

Susan worked in our billing department and rose to the position of billing supervisor within 2 years. She is a quick learner and pays close attention to detail. She is both a problem solver and a team player. Under her direction, our accounts receivable were reduced from 3 months outstanding to 1 1/2 with a claims rejection rate of less than 2%. She instituted a patient statement format that is easy for our patients to understand, reducing billing calls significantly. Susan conducted the research on computer systems and assumed responsibility for a conversion that was seamless, causing minimal delays in billing activities.

We hope Susan is able to secure a position worthy of her talents. She will be missed by our physicians and her coworkers.

Sincerely,

 

Gail Weiss. Should you give employee references? Contemporary Ob/Gyn Jul. 1, 2004;49:82-88.