RISKY RECOMMENDATIONS
If you think you should give a prospective employer a letter of recommendation on one of your former
employees, think again. This article is an update of the case of Randi W. v. Moroc Joint Unified School
District (97 Daily Journal D.A.R. 965), an appellate court decision I reviewed in an earlier Bulletin . The
California Supreme Court affirmed on January 27, 1997 that that Fresno school district may be sued for
fraud and misrepresentation for failing to disclose known unfavorable facts about a former employee in a
written “glowing letter” of recommendation.

Among the defendants in this lawsuit were three school districts who gave the vice-principal employee
unreserved and unconditional letters of recommendation to the new school employer. None of the
previous schools disclosed known charges against the vice-principal of molesting students. Randi W., a
thirteen year old girl at the school the vice principal moved to accused him of sexually molesting her. The
vice-principal pleaded guilty to unlawful touching.

THE COURT’S DECISION
The California Supreme Court concluded that “the writer of a letter of recommendation owes to
prospective employers and third persons a duty not to misrepresent the facts in describing the
qualifications and character of a former employee, if making these misrepresentations would present a
substantial, foreseeable risk of physical injury to the prospective employer of third person.” The Court
clearly rejected the defendant-employers’ arguments that the letters contained no “actual
misrepresentations,” but amounted only to “mere non-disclosures” because they neither discussed nor
denied prior complaints of sexual misconduct by the employee. The Court called this “misleading half-
truths” and admonished employers that, “having undertaken to provide some information regarding the
former employee’s credentials and character, they were obliged to disclose all other facts which
‘materially qualify’ the limited facts disclosed.” In other words, if you volunteer information, you must
“complete the picture” and disclose all material facts!

Ordinarily, a recommending employer will not be held accountable for failing to disclose negative
information about a former employee, unless 1) there is a ‘special relationship’ between the former
employer and the injured party, or 2) the recommendation amounts to an ‘affirmative misrepresentation
that also presents a foreseeable and substantial risk of physical harm to a prospective employer or third
person. If the only potential risk involves economic harm, as in the case of embezzlement, you are unlikely
to be held liable. On the other hand, if a former employee’s drug use could endanger patients and you
provide only an unqualified recommendation, you may be liable to someone who gets hurt after the
employee is hired in reliance on your statements.

Further, new theory of liability for references has arisen in California in several other cases. This theory
can be utilized by employee even if you give out no information at all. The theory is defamation by
“compelled self-publication” which means employees have successfully argued that were compelled to
tell prospective employers about allegedly untrue information contained in their personnel file. The idea is
that if she doesn’t reveal the information, the prospective employer will discover it anyhow when he calls
for references. Including your policy on references in your personnel
manual should provide you with an adequate defense to a claim such as this.

WHAT YOU SHOULD DO TO AVOID LIABILITY

1. Again, Just Say No. Do not give written letters of recommendation or,
2. Strictly limit your letters of recommendation to verifying employment position, salary and dates of
employment.
3.  If you insist on writing a letter, write a full disclosure letter, revealing all relevant positive and negative
facts. Former employers are protected from defamation lawsuits and other tort claims by law (Civil Code
section 47 (c), adopted Jan. 1, 1995), as long as the letter is provided in response to a prospective
employer’s inquiry and is not malicious.

In any case, you can lessen your potential liability by adopting uniform procedures for responding to
requests for information about former employees and by requiring that all requests be in writing.

© Bette Robin, DDS, JD 4/97
Bette Robin                                                                                      714-421-4407
Dentist, Attorney, Real Estate Broker                                                                                                                                      
DrRobin@BetteRobin.com
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