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Employers are increasingly landing in court over job references, facing lawsuits both for what they said and what they didn’t say about ex-employees. Employers are finding that they are being sued no matter what course they take: whether they give a bad reference, a good reference or stay entirely silent. In Georgia, a lawsuit is pending against a school district for giving a positive reference to a teacher who had been convicted of a sex crime and who went on to teach in a district where he was later charged with raping a student. Dunlap v. Atlanta Public School System, No. 07-0464 (N.D. Ga.). In New Jersey, a man is suing Best Buy Co. Inc., his former employer, alleging that a human resources manager allegedly wrote a defamatory e-mail about him to a prospective employer. Oliveri v. Best Buy, No. 1:2008 CV 00383 (D.N.J.). In Rhode Island, a nurse claimed that her former boss retaliated against her by giving her a bad reference, saying she had “unacceptable work habits.” But the Rhode Island Supreme Court last year threw out the case, saying the nurse failed to prove the statement was motivated by malice. The court also held that the boss was qualified to criticize the nurse’s work performance. Kevorkian v. Glass, No. 02-152 (R.I.). Nancy Cornish, a management-side attorney at Kissinger & Fellman in Denver, called bad reference claims “an area of growing concern. “I think employers, when they get that phone call for a reference, in the back of their mind they think, ‘Am I going to get sued for what I say next?’ ” said Cornish, “ I think this is becoming one of those areas where it’s becoming a red flag for employers to say, ‘tread carefully.’ “ An economic factor Many lawyers fear that with the economy in a downturn, job-reference litigation is only going to get worse. “In a changing economy, where unemployment is on the rise and employees are having more difficulty finding a job, these kinds of claims are going to become more prevalent,” said Anthony Oncidi, chairman of the Los Angeles office’s labor and employment group at New York-based Proskauer Rose. “Employees are going to have a harder time finding a job, so they tend to stew more about their former employment situation,” Oncidi said. “And if, for one reason or another, they become convinced that they can’t get a new job because of something a former employer has said, they’ll be more inclined to file a suit.” Oncidi, who is currently defending an employer accused of giving a bad reference that interfered with a person’s ability to get a job, said employers typically get into trouble over how they characterize an employee’s departure to a third party. “Many employers, for one reason or another, have a blind spot in this area with regard to what they can say once the employee has left the building.” Oncidi noted that “[f]or one reason or another, employers may believe that the potential liability stops once the employee has been terminated � and it doesn’t. If the employee doesn’t get the job, and they know there was a conversation between the two, they fill in the blanks.” But not everyone is talking. Attorneys note that a fear of litigation has prompted many employers to be more tight-lipped when it comes to job references. Many companies have adopted policies that specifically state to new hires that they will not give them any kind of references when they leave. Some companies have set up an automated dialing system: A new employer dials an 800-number, keys in an applicant’s name and a recording gives the dates of employment � nothing else. Some employers require job applicants to sign a document that states they will permit prospective employers to find out any information about them, and that they waive their right to sue over anything that is said. Even law firms are using them. “When we hire, that’s what we do. We get a waiver from the individual and we contact every employer. Some employers have refused to talk to us without the waiver,” said Amanda Farahany, an employee rights attorney at Atlanta’s Barrett & Farahany. The trouble with keeping mum But limiting reference information can lead to trouble as well. Farahany noted that the say-nothing approach has led to more sexual harassment lawsuits in the workplace. Previous employers are being sued for not disclosing an employee’s sexual harassment history, while new employers are getting sued for hiring a person with a troubled past. Farahany is currently involved in that kind of a case against two employers. She is representing the plaintiff who is suing a Georgia school district for giving a positive reference for a teacher who had a criminal conviction and went on to teach at another school, where the teacher allegedly raped a student. “It’s an employer’s duty to provide a safe workplace,” Farahany said. And when employers don’t offer any information about anyone, the work force suffers, said Sue Ellen Eisenberg, an employee rights attorney at Eisenberg & Bogas in Bloomfield Hills, Mich. “If an employer hides behind a complete neutrality policy, in many ways, the policy is eminently unfair because it can reward the bad employee � the employee who has shown signs of violence or discrimination � and it injures the good,” Eisenberg said. Despite the growing popularity of no-comment reference policies, Eisenberg said, there are still plenty of employers who will skirt the rules to say something positive about a good employee. “Employers often want to give a positive reference,” she said. “So they’re willing to bend that neutrality policy.” And that’s where they can get into trouble, warn management-side lawyers, who offer several reasons why employers should stick to saying nothing about past employees. For instance, scores of reference-checking companies have popped up on the Internet, offering to help job applicants find out what their old bosses are saying about them. Also, plaintiffs’ lawyers are masquerading as prospective employers, calling employers to see if they can catch them saying anything negative about job applicants, according to Oncidi. “I tell all my employer clients, ‘Give titles, dates and salary only . . . .Even a positive letter, a well-intentioned letter, can cause a world of hurt,” said William Sayegh of The Law Firm of William G. Sayegh, a management-side firm in Carmel, N.Y. “This kind of litigation � employee against employer � is one of the fastest-growing in the country. Absolutely no good could come from a well-intentioned reference letter or character reference.” Attorneys note that most states have immunity laws that allow employers to speak freely about employees’ job performance � as long as the statements are made without malice. But plaintiffs typically argue there was malice, some lawyers add, and a lawsuit ensues. In the past three years, Sayegh said he has seen a significant number of clients threatened with litigation, or actually sued, over alleged bad references. None of the cases has been successful, he said, noting that the majority of cases get dismissed because his clients have heeded his advice: Say nothing but the very basics. “What I do is I practice prophylactic litigation,” he said. Management-side attorney Jennifer Rubin, a partner in the New York office of Boston’s Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, said that the say-nothing policy with regard to references has contributed heavily to the growth in background checks and credit history checks. “Employers are resorting � rightly or wrongly � to doing these intensive background investigations because that really is the only way to get credible information when you can’t get it from the employer,” Rubin said. “If another employer isn’t talking, then what are you supposed to do?”

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