How to Write Reference Letters
Legal Principles Involved With Reference Letters
I. Right to Privacy
A. State constitutional or statutory protection
B. Unwanted intrusion or disclosure of personal facts to the public or a third party
C. No compelling reason to do so
D. Specific areas are prohibited from disclosure, such as medical information, age, race, national origin, marital status, sex, religion, and disability.
II. Defamation
A. Common Law principle
B. Definition - verbal or written communication that:
1) impugns reputation, ability, or character of another;
2) is received by a third party;
3) is untrue, substantially untrue, or communicated without regard to the truth or falsity of the matter;
4) causes damage to a person.
C. Qualified Privilege - negative employment references may not be legally actionable if:
1) the communication is based upon an evaluation of the person’s work and ability.
2) made by someone who has knowledge of the person’s work and ability.
3) the communication is limited to information which is job-specific.
4) the communication is disclosed to prospective employers to satisfy legitimate business needs.
5) the communication is not done out of malice or with intentional harm.
6) the accuracy of the information provided is verified prior to its disclosure.
D. Self-Publication Defamation
1) disclosure of reason for termination by applicant
2) reasonable expectation that disclosure will occur as part of normal hiring process
3) defense - sufficient documentation of termination decision
III. Family Education Rights and Privacy Act (FERPA)
A. Federal law
B. Right to consent to disclosure prior to disclosure of any part of educational record by educational institution or one of its employees
C. Student’s right to inspect educational record
D. Right to waive inspection of educational record, including references, if:
1) waiver is in writing and signed by student;
2) waiver is voluntary;
3) waiver is not required for receipt of or participation in any programs or services of educational institution.
IV. Release/Waivers
A. Required in some states
B. Permission to provide information regarding applicant’s previous employment
C. No defense to defamation
V. Discrimination
A. Refusal to provide a reference on the basis of race, color, sex, national origin, age, disability, religion, marital status, parental status
B. The specific characteristics listed at I. D. also could result in discrimination charges if disclosed
VI. Negligent Hiring/Negligent Referral
A. Negligent Hiring
1) Definition:
-duty to exercise reasonable care to select employees who are competent and fit for work
-breach of that duty
-harm caused by employee to another person
2) Factors to consider:
-was the employee’s conduct in furtherance of the employer’s business or for personal reasons?
-was the conduct foreseeable by the employer?
-where/when did the conduct occur?
B. Negligent Referral
1) Definition:
-duty to exercise reasonable care when reviewing individual’s background prior to referring for employment
-breach of that duty
-harm caused by employee to the employer or another person
2) Factors to consider:
-reasonable expectation that credentials would be checked by referral entity
-did the referral entity do any type of background check?
-was the harmful conduct a foreseeable result of the inaccurate credentials?
VII. State Reference Immunity Laws
A. States with immunity laws: Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, Wyoming
B. Each state provides different protection using different standards
C. In general state laws provide for "qualified or conditional immunity" when providing a reference if the employer:
1) Acts in good faith;
2) Acts without malice or reckless disregard for the truth or falsity of the information;
3) Discloses accurate, job-related information for a legitimate purpose; and
4) Handles the information in a controlled and proper manner.
D. Provides no protection to other non-employer reference givers such as faculty, school administrators, clergy, and friends.
Source: A New Dilemma: Reference Letters and Checks (Legal Monograph), College Placement Council (now, National Association of Colleges and Employers), 1988.
