Employment Practices – Part 2

A Washington court ruled that a school was not liable on the basis of “negligent misrepresentation” for not disclosing in letters of recommendation that a former employee had been reprimanded for inappropriate behavior.

Church Law and Tax 2003-05-01

Employment Practices

Key point 8-23. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

* A Washington court ruled that a school was not liable on the basis of “negligent misrepresentation” for not disclosing in letters of recommendation that a former employee had been reprimanded for inappropriate behavior with minors and had been arrested on three counts of child molestation. A man (“Jesse”) was employed as a janitor by “School A” for several years. He received numerous reprimands for inappropriate conduct with students, and was eventually arrested and charged with three counts of child molestation involving members of his wife’s family. School officials were notified of the arrest, but took no action against Jesse. They concluded that the charges of child molestation were tied to Jesse’s divorce, and were a “family squabble.” A few months later, he was suspended for 5 days because of inappropriate sexual remarks he directed at some students. The charges of child molestation were later dropped in exchange for Jesse’s agreement to resign his janitorial job. Jesse resigned, but was later rehired by the school as a substitute bus driver.

The principal of School A wrote Jesse a letter of recommendation addressed “To Whom It May Concern.” The letter noted Jesse’s experience in maintenance and bus driving and concluded with the following: “Jesse’s custodial work was performed to a very high level of expertise. As to the caliber of efficiency in this area, I would rank him in the top 5% of all custodians that I have observed in my 33 years in education. It is with pleasure that I recommend Jesse to you as an efficient and thorough employee.” The letter did not mention the reprimands or the criminal charges.

The principal of School A wrote a letter of recommendation to the principal of School B. This letter also recommended Jesse without reservation, and failed to mention any reprimands or criminal charges. Jesse was hired by School B as a full-time janitor.

Jesse was dismissed by School B after 2 years for making a false statement on his employment application and for asking a student where he lived. Jesse filed a grievance with his union and the issue was presented to an arbitrator. The arbitrator concluded that Jesse had been wrongfully terminated, and it ordered the school to pay him $100,000. School B then sued School A for damages due to negligent misrepresentation of Jesse’s employment record. In effect, School B sought to recover the $100,000 it paid to Jesse plus its attorney fees. The trial court dismissed the case on the ground that the information in the letters of recommendation was not false. The court also ruled that School A had no affirmative duty to disclose negative information about Jesse, especially about arrests. School B appealed. A state appeals court agreed with the trial court’s dismissal of the case. It noted that School A was not guilty of negligent misrepresentation since “negligent misrepresentation” requires the communication of false information, and none of the letters of recommendation written by School A contained false information. Each letter extolled Jesse’s virtues as a custodian, and there was no evidence that these statements were false. The court also ruled that employers have no affirmative duty to disclose negative information regarding current or former employees to other employers.

Application. This case is important for two reasons. First, it demonstrates that employers generally have no affirmative duty to share negative or damaging information in letters of reference that they provide to prospective employers. In this case, the letters of recommendation written by School A were limited to statements concerning Jesse’s performance as a janitor. It had no legal obligation to inform School B that Jesse had been arrested for child molestation, and disciplined by School A for inappropriate behavior with students. Second, many church leaders feel morally obligated to share “negative” information concerning a former employee with other churches that ask for a letter of reference on that person. Such disclosures obviously expose the church to potential liability. But, this risk can be reduced by restricting all statements in the letter of reference to verifiable information, and by informing the prospective employer that you will provide a reference only if you receive a release form signed by the former employee releasing your church (and anyone providing a reference) from liability for any reference you provide. This form also should consent to you providing the reference, and give the former employee the option of either waiving or not waiving the right to see the reference you provide. If the employee signs a legally effective release, this greatly reduces the church’s risk. If the employee refuses to do so, this acts as a warning signal to the prospective employer. Richland School District v. Mabton School District, 45 P.3d 580 (Wash. App. 2002).

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