Legal Q & A: Writing a Reference Letter

Question: What kind of information can I put in a reference letter, a letter of recommendation, or an evaluation?  

Answer: A reference letter from a faculty member, a report from an employer on a student's progress in a cooperative education assignment, an evaluation of a student teacher, or a recommendation for a full-time position: Authors of these evaluations want to know if they will get into trouble if they write less-than-glowing reports or recommendations. Reference writers also want to know if they must disclose negative information about a person.  

The answers to these questions lie in another set of questions: Who will see this information? Is that person entitled to the information? What is the purpose of the information? Is the information accurate? Is the information misleading?  

The Scenario

A student took a cooperative education assignment in a publishing company. After three months, the student was evaluated. Her supervisor identified certain areas for improvement, discussed the evaluation with the student, and placed it in her personnel file. Over the course of the assignment, which spanned several semesters, three more evaluations occurred and were placed in the student's file. Her performance was uneven, and each of the evaluations indicated her weak areas. At the end of the assignment, the vice-president of the company asked to see the student's written performance evaluations, so he could determine whether to offer the student a full-time position. Based on the evaluations, the student was not offered a full-time position.  

The supervisor also shared the evaluations with the school's cooperative education coordinator and the student's adviser. The adviser worked with the student on some of her weak areas. Later, when asked by the student to give a reference, the adviser prepared a letter outlining the student's strengths and weaknesses based on the adviser's own observations and on information contained in the employer's performance evaluations. The letter became part of the student's credential file, which is sent to potential employers. After a year, the student remained unemployed.  

Does the supervisor, employer, or student adviser have any liability for defamation? How would the law look at this scenario? How appropriate were the employer's and the adviser's actions?  

Defamation

To be defamatory, a statement must be false and must harm the person's reputation and lower his or her esteem within the community. "Harm to one's reputation" must result in tangible harm, e.g., loss of money, business, or employment, to the person. A substantially true statement may be defamatory if it is incomplete and misleading. Statements of opinion are defamatory if they are based on unsubstantiated facts.

The general rule is that no defamation is committed unless the erroneous statement is written or spoken to someone other than the person about whom the statement is made. Some courts have held that if the communication is among managerial personnel of the same organization and concerns business issues, such as performance problems of employees, it is not considered "a publication" to a third person.

Qualified Privilege

In the employment context, the law provides a "qualified privilege" for communications made in good faith on any subject in which the party making the communication has an interest. Some courts have held that qualified privilege applies to personnel evaluation information or intra-company communications regarding an employee's fitness. Even though remarks may be untrue, if the conditions of qualified privilege are met, the communicator has a complete defense against the defamation claim.  

An employer may be protected by a qualified privilege when it discloses information necessary to serve its legitimate interest in an employee's fitness to perform. For example, qualified privilege applies when a current employer discloses the reasons for an employee's discharge to a prospective employer. It also applies when a supervisor is informed of his/her employee's improper conduct. The privilege may be lost if the communication reaches people who do not have a legitimate interest in the subject.  

A statement also loses its privileged character if the communicator is motivated by ill will, if there is excessive communication of the statement, or if the statement is made without a reasonable belief that it is true. 

At issue is not only the factual accuracy of the statement. For a statement to be defamatory, it must be shown that substantial evidence exists that the supervisor knowingly lied or had no idea (reckless disregard for the truth) whether the statement was true. Reckless disregard for the truth includes a failure to verify circumstances where verification is practical.

How Qualified Privilege Applies

How does qualified privilege apply to the co-op student's situation?

The first communication was made when the student's performance evaluations were sent to the vice-president. This is an intra-company communication, and the vice president has a legitimate interest in the information. Unless the student can show that there was ill will on the part of the supervisor, this communication meets the requirements of qualified privilege. Had the supervisor sent these performance evaluations unsolicited to others in the company or to people who had no reason to obtain the information, qualified privilege would be lost. If the supervisor made inaccurate statements and verification was practical, then qualified privilege would be lost.  

The second communication, from the supervisor to the college adviser, was made outside of the company and the employment context. If the agreement between the school and the employer specifically stated that reports would be made to the school regarding the student's progress, then the adviser has a contractual right to this information. If this is the school's standard requirement, the student should be told that this communication will occur and be advised of its purpose. It is not clear under the law whether the adviser should receive the report if there is no agreement.  

The third communication is a reference letter from the adviser to potential employers. Reference letters, like performance evaluations, are used as part of the selection process for hiring decisions. The law is not clear on whether an adviser's reference to a prospective employer has the same qualified privilege as a prior employer's communication to a prospective employer. The reference letter, however, is subject to the same conditions of qualified privilege.  

Reference letters should be communicated in good faith to other individuals with a need to know. In fact, the student controlled who would receive it by placing it in her credential file, and the adviser cannot provide employers with the information indiscriminately.  

The flaw in this scenario, however, is the use of the employer's performance evaluations as part of the adviser's letter. The adviser did not collect the information and did not make an attempt to verify its accuracy. The adviser risks losing qualified privilege.

Intentional Misrepresentation Liability

Reference providers who become concerned about defamation liability may fall into another trap. They may overcompensate and provide a glowing reference, when in fact the student may have done something wrong or been a problem performer.  

However, in most cases when a reference "accentuates the positive and eliminates the negative," there is no liability. However, a recent court case may give reference providers pause to consider just how much "fluff" should be put in references when there is a foreseeable risk of physical injury by the prospective employee.  

In Davis v. The Board of County Commissioners of Dona Ana County, an employer provided a reference for a former employee—a detention sergeant—describing him as a "pleasure to work with," and an "excellent" employee even though the employer had been planning to place the employee on an unpaid disciplinary suspension as a result of an investigation into allegations of inappropriate sexual behavior with female inmates. He was subsequently hired by a psychiatric facility, where he was accused of sexually and physically assaulting a patient over a period of two weeks. The patient sued the former employer for negligent misrepresentation because of the misinformation supplied by the detention center about the employee.  

The court found that a reference should give the complete picture, especially if there is good reason to believe that the prospective employee will cause physical harm to others. The alternative, the court said, is to refuse to provide a reference.

Other Considerations

Discrimination Laws: A reference should not disclose information regarding an individual's protected status. Moreover, providing references for only certain individuals based upon race, age, sex, national origin, disability, or religion, will expose the reference provider to potential liability. Individuals who provide references that seem to be generally positive for members of certain groups and generally negative for members of other groups on a consistent basis could be liable for discrimination.  

Prospective employers requesting information should not ask for information that they could not request from the job applicant. However, the prospective employer may ask questions regarding dependability, absentee record, and use of drugs/alcohol on the job. If the position involves the safety and security of others, questions pertaining to violent behaviors can be asked.  

FERPA: Faculty or other school personnel who are asked to give references have an additional duty under the Family Educational Rights and Privacy Act (FERPA). They must obtain the signed, written consent of the student to disclose information from a student's education record. Thus, if the reference wants to disclose the student's GPA or grades, the student must provide a signed, written consent prior to the disclosure.

Current Reference Information

Thirty-three states have passed reference immunity legislation, which provides former employers who provide references on former employees from protection from civil lawsuits. Individuals other than employers who provide references must rely on the common law defenses—truth or qualified privilege—against charges of defamation.  

Evaluations of an individual's performance, whether at work or in the classroom, are an integral part of the world of work and education. Communication of this information is necessary and appropriate.  

Here are some tips for reference providers:  

• Prior to providing a reference, obtain consent from the person about whom the reference will be given. Written consent is better, but verbal consent will suffice.
• Candidly discuss the type of reference that you will provide.
• Follow your organization's policy regarding providing a reference. If references are handled in a centralized fashion, advise the prospective employer that even though you may be named as a reference, your organization's policy prohibits you from providing one.
• Avoid lunch discussions or "off- the-record" telephone conversations with prospective employers regarding a person's performance. There is no such thing as "off the record."
• If you are unaware that the job applicant has named you as a reference, ask the prospective employer for verification that the person has given consent for the reference.
• Provide factual information, based upon personal knowledge/observation of the person through direct contact with the person or obtained from the person's personnel record or student record.
• Respond to direct and specific inquiries about the job applicant. Direct the response to the particular person who requested the information.
• Relate the reference to the specific position for which the person applied and the work that the applicant will perform.
• If you make subjective statements or give opinions because they are requested, clearly identify them as opinions and not as fact. If you give an opinion, explain the incident or circumstances upon which you base the opinion.
• Don't guess or speculate. If someone asks you questions regarding personal characteristics about which you have no knowledge, state that you have no knowledge.
• Do not include information that might indicate the individual's race, color, age, religion, national origin, disability, gender (unless the individual's name makes gender obvious), or marital/parental status. 

Copyright 2013 by the National Association of Colleges and Employers. All rights reserved.