A new California appeal court decision serves as an important reminder about the risks of providing job references for former employees. We’ll explain what happened.
Background Check Under Way
Brandon Noel filled out a background questionnaire for a position with GTE, where he had recently begun working in a temporary position. In response to a question about criminal convictions, Noel wrote he had been convicted several years before of a felony involving aiding and abetting and that he had received “parole/probation to youth authority.”
GTE then retained background check company Checkpoint to contact Noel’s former employers. Checkpoint spoke with Shelly Santillan, a manager at River Hills Wilson’s, where Noel had previously worked for a few months. Santillan told Checkpoint that Noel had left Wilson’s because of “loss-prevention issues” and that his rehire status was “unfavorable.”
Worker Terminated On Erroneous Information
Checkpoint included Santillan’s information in a report to GTE. An addendum report contained information indicating Noel had been convicted of several crimes, including carjacking and robbery. On receiving the addendum, GTE terminated Noel’s employment.
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It turned out Santillan was mistaken—Noel was never involved in loss-prevention issues at Wilson’s.So Noel turned around and sued Wilson’s and Santillan for defamation. He alleged he lost his position at GTE because of the erroneous information Santillan gave Checkpoint.
Wilson’s asked the court to dismiss the lawsuit. The company pointed to a California law that protects employers from defamation lawsuits based on job references made without malice to prospective employers. Wilson’s argued there was no evidence Santillan acted with malice.
Employer’s Blunder Not Equal To Malice
A California appeal court has now sided with Wilson’s, throwing out the lawsuit. The court explained that toshow an employer acted with malicethere must be evidence 1) the statement waseither motivated by hatred or ill will toward the employee; or 2) the employer didn’t have reasonable grounds for believing the truth of the statement. Mere negligence in giving an erroneous job reference— such as an unintentional error or oversight—is not malice.
Santillan’s comments to Checkpoint didn’t rise to the level of malice. Rather, she made a careless blunder by not paying sufficient attention to the subject of Checkpoint’s inquiry. In particular, Santillan had been expecting a background check call on another former employee who was fired for loss-prevention issues.
4 Ways To Avoid A Lawsuit
This case highlights that providing references to prospective employers can land you in court. And even if you ultimately convince a court to dismiss the case, you’ll have spent a lot of time and money defending your actions.
Here are suggestions to help protect your company from a defamation lawsuit stemming from how you handled an employee reference:
- Only verify employment. The traditional and safest approach is to limit references to confirming dates of employment, job title, and salary. Give this information only if you have the employee’s written consent accompanied by a signed release and a written request from the prospective employer.
- Limit who can respond. Designate certain managers to handle references and make clear that all requests are to be referred to them. Caution supervisors not to disclose the reasons for the person’s termination to their former co-workers. 3. Distribute your policy. Make sure supervisors—and anyone else who might be contacted for a reference—know about your job reference policy and that violating it is grounds for discipline or termination.
- Stick to the truth. If you do give lish the facts, and be sure what you say is objective. Check your files carefully before making any statements to be sure you can support what you say.