Throughout our lives we transition in-between jobs quite frequently, and as a result, potential employers look to inquire about our past job history through references of employment. However, what if your previous employer gives you a negative recommendation which leads to you not getting the job? Can that employer be held liable for “bad- talking” you? The following presents a brief overview of what a past employer may be liable for as well as a potential employer’s duty to check such references.
It is vital to get informed and know your rights as a potential employee to ensure your legal rights are protected. Here’s a section of my book “The Employee Rights Handbook” that deals with just that! Read now!
Applicant References
When companies fail to investigate an applicant’s background and they hire a person unfit for the position who causes harm or injury to another, they are sometimes liable under a legal theory referred to as negligent hiring and retention. Under this negligent-hiring doctrine in most jurisdictions, employers have a duty of reasonable care in hiring individuals who, because of employment, may pose a threat of injury to fellow employees and members of the public. Negligent-hiring claims have been made against employers for murders, rapes, sexual assaults, physical assaults, personal injuries, and property losses allegedly committed or caused by an unfit employee.
In one case a McDonald’s worker in Colorado, while on the job, sexually assaulted a three-year-old boy. The fast-food restaurant had hired the man without a complete background check, which would have shown a history of sexually assaulting children. The family sued and a jury reportedly awarded the victim $210,000. However, liability may not be found under the negligent-hiring theory in cases where the employee’s acts are not foreseeable and where the pre-employment investigation of an employee’s qualifications did not give rise to actual or constructive knowledge of a potential problem.
For example, a union was held not liable for recommending the hiring of a cruise ship employee who committed a sexual assault upon another seaman while both men were vacationing onshore after working together on the cruise ship, because evidence of a propensity for aggressive behavior did not show up in the union’s standard pre-employment investigation of the perpetrator. Employers may be liable to the applicant and employee under legal claims (including defamation, intentional infliction of emotional distress, and violations of the implied covenant of good faith and fair dealing) when references are not investigated properly or are leaked to nonessential third parties.
For example, in one case a man terminated from an insurance company discovered that his former boss, in reference checks, had called him “untrustworthy, disruptive, paranoid, hostile, irrational, a classic sociopath.” He sued and a jury decided those characterizations were out of line, a mistake that cost the company $1.9 million. Such cases typify the legal dilemma employers face with reference checks. When hiring, if they miss a potential problem, some courts find them negligent. But when giving references, if they say too much, they may be liable for defaming former workers. Thus, employers must be familiar with local, state, and federal laws in this area. Be aware that you may have rights in the event that harmful confidential information (for example, credit references) is communicated to nonessential third parties to your detriment.
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