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 says that it has the following characteristics:

• False statement of fact (opinions are not fact and aren’t defamation, West says)
• Unprivileged. In many states, there is a qualified privilege for those giving references (see below)
• About an employee
• Disclosed to a third person
• Causes damage to the individual’s reputation, or exposes the individual to public ridicule, shame, hatred or contempt

Qualified Privilege

Under many state laws, employers who give reverences may enjoy a qualified privilege so long as reference statements are:

• Made without malice (you’re not trying to “get back” at someone)
• Made only to those with a need to know
• Limited to the employee’s performance or qualifications only

Remember, says West, that truth is a defense in defamation cases.

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Proactive Best Practices for References

When dealing with references, says West, proactive employers will:

• Obtain from the employee an authorization and release
• Issue specific guidelines to managers and supervisors that limit who can respond  and limit responses to:
• Verifying employment
• Stating eligibility for rehire

• 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.
• Maintain accurate and objective personnel files
• Limit discussions regarding terminations, performance, other employment actions
• Watch their actions, not just their words
• Use caution when writing reference letters as part of settlement. 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
• a reasonable inquiry should have discovered that the individual posed a threat to others

With regard to negligent hiring, West says, remember that the average verdict is over $1Million! One other frequently forgotten fact is that that the rules apply to independent contractors, she adds.

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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.