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March 2009
Letters of Recommendation and Employee References – What California Employers Need To Know
Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
If a California employer is asked to write a letter of recommendation about a former employee, or to provide a reference during a background check, it is important to know your duties and obligations under California law and to exercise caution.
A Former Employer Can Be Sued For Providing False Negative Information in a Job Reference.
Employers asked to provide a letter of recommendation, or reference, must be aware that they can be sued by their former employee for defamation, retaliation, interference, and emotional distress if the former employee doesn't get a job as a result of any false negative information provided to a potential new employer. Job seekers who have reason to believe their former employers are providing negative information can prove their cases by contacting a company such as: Job References.com, References-etc.Inc., Documented Reference Check, or Allison & Taylor Reference, that will for a small fee pose as an employer calling for a reference check. They will call the job seeker's former employers, or landlord, ask pertinent questions, and provide a report of their findings to the job seeker.
A Former Employer Can Also Be Sued For Providing a Positive Letter of Recommendation.
But what about giving a positive reference. That can be a minefield too. Under California law, a former employer who provides a positive reference can also be sued by a future employer for negligent misrepresentation, if the employer omitted, or misrepresented, negative information about a former employee and that former employee later causes physical harm to someone else in the workplace. Consequently, many California employers have institute a policy of providing no letters of recommendation, and limiting the information they provide to confirming dates of employment and the position held.
What California Employer's Should Do.
California employers who are in the process of laying off, or terminating employees, should address the possibility of a job reference, or letter of recommendation in their termination procedures. It would be wise, during an exit interview to broach the topic with the employee and ask the terminated employee if they will need a reference, and if so, to discuss any potential problems. If the to be former employee would like you to provide more than his or her dates of employment and position held, you can prepare a truthful letter of recommendation (even if it is to be used solely for providing a telephone reference) if the employee is willing to provide his or her advanced written consent to the disclosure of the contents of that letter. Exercise caution, and be careful to be truthful. In Randi W. v. Muroc Joint Unified School District, 14 Cal.4th 1066 (1997), the California Supreme Court held that a former employer who provides a letter of recommendation has a duty to future employers not to misrepresent the facts, if in making such a misrepresentation or omission, presents a foreseeable risk of physical injury.
A large part of our employment law practice consists of counseling employers who seek to comply with new state and federal employment laws, providing human resource training, and providing essential contracts and employee policies to prevent employee lawsuits. To schedule a consultation call 818-849-5206 or Email Us.
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California Business and Employment Lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.
© 2009 Melissa C. Marsh. All Rights Reserved.
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