Beyond Discrimination: What Else Can You Be Sued for?

West, principal of Employment Practices Specialists in Pacifica, CA, offered her tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, DC.

Defamation

In the HR world, defamation often rears itself in relation to references. What exactly is defamation? West notes that first of all, it has to be a “false statement of fact.” So opinions aren’t defamation since they aren’t fact.

Some states offer a qualified privilege for those giving references (see below), so a statement is not defamatory if it falls under the privilege.

The statement must be made about an employee and it must be disclosed to a third person.

Finally, the statement must cause damage to the individual’s reputation, or expose the individual to public ridicule, shame, hatred or contempt.

What Is the ‘Qualified Privilege’?

Under many state laws, employers who give reverences may enjoy a qualified privilege; however, there are three characteristics that most state require:

• The statement must have been made without malice; that is, not by someone who is trying to “get back” at someone else
• The statement must not have been widely broadcast, but restricted to those with a need to know
• The statement must have been made about the employee’s performance or qualifications and not about other matters

Truth Is a Defense

Remember, says West, that “Truth is a defense in defamation cases.”

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Proactive Best Practices for References

To avoid legal entanglements, employers should be proactive in dealing with references. West says that employers should start by insuring that they maintain accurate and objective personnel files.

Then, obtain an authorization and a release from the employee before seeking a reference.

Also be sure to train supervisors and managers about your policies about the circumstances in which information may be released and what information may be released.

Make sure that managers and supervisors know to avoid actions that might be viewed as blacklisting (“You’ll never work in this town again.”). Blacklisting is a criminal offense in some states, California, for example, notes West.

Finally, use caution when writing reference letters as part of settlement, West says. It may be tempting to omit negative information, says West, but remember there is always the possibility of being sued for negligence for not revealing important information, for example, relating to violence.

Can We Talk ‘Off the Record’?

Inform your managers that there’s no such thing as “off the record” when it comes to references, says West.

Negligent Hiring

Employers have a duty to exercise reasonable care in hiring, West says. Negligent hiring suits may arise if employers hire someone with known dangerous traits, or if a reasonable inquiry would have discovered that the individual posed a threat to others

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What if I Hire Through Agencies?

Are you safe if you hire through agencies? Don’t they do a background check? Agencies make money by placing people, West says. When she asks employers, they usually say, ”I think the agency does something.” That’s not good enough; find out what they do in the way of reference checks, West says.

In tomorrow’s Advisor, West’s tips for avoiding hiring-related lawsuits, plus an introduction to a unique, web-based employee training system.