Want to stay out of court? Then document, document, document!
Negligent hiring, defamation suits on the rise
"Twenty years ago, I hardly ever heard of a negligent hiring case. Now I hear of them regularly," says attorney John Gilliland II. "There’s been a lot more publicity about the issue. 20/20, 60 Minutes, and PrimeTime Live have all done segments on negligent hiring, though most of their focus was on nursing homes."
Gilliland points out that home care, like all health care, has become a little less personal and is often furnished by a big corporation, as opposed to the local Visiting Nurses’ Association (VNA). "And," he points out, "all kinds of litigation have increased. We’ve become a very litigious society."
Negligent hiring isn’t the only kind of lawsuit a private-duty home care agency has to worry about, either. Defamation lawsuits brought by former employees who believe they were denied a job because of a bad reference are all too common these days.
When giving a reference, don’t go half way
As an example of what can happen when you withhold the whole truth when giving a reference, Gilliland cites a recent case, in which the New Mexico Court of Appeals ruled that employers, once they elect to make employment recommendations, owe a duty of care to third parties who may be injured by those recommendations.
The case involved a young woman undergoing psychiatric therapy who was sexually assaulted and abused by a mental health technician. The technician was hired in part due to the good but untrue references he received from his former employer, who deliberately withheld information about the technician’s past inappropriate and abusive behavior. The technician was employed at a county facility.
Despite the fact that counties generally enjoy legal protections above and beyond those available to the private sector, the county was found liable for the injuries its patient suffered. The court’s in this finding stressed: "A victim of physical violence need not rely on the negligent misrepresentation, or even be a party to it, as long as the injury is the result of the recipient’s reliance on the employer’s misrepresentation." It also stated that "If the employer does speak, he must disclose enough to prevent his words from being misleading. . . . half the truth may amount to a lie, if it is understood to be the whole."1
Do you have a defense?
In its conclusion, the New Mexico court found that:
• Public policy supports full and accurate disclosure of non-confidential information by employers.
• New Mexico’s common law reflects just such a policy of encouraging employer disclosure by recognizing a qualified or conditional privilege (against a defamation claim) to make statements about its employee or former employee if for a proper purpose and to one having a legitimate interest in the statements.
• When requested to provide a reference on a former or current employee, an employer acting in good faith is immune from liability for comments about the former employee’s job performance. The immunity shall not apply when the reference information supplied was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil rights of the former employee.1
Yet, even the fact that most states now allow an employer the privilege of giving accurate, truthful references won’t stop a disgruntled former employee from filing suit. "What people would like is to not be sued," says Gilliland. "Well, anybody can be sued. The question is, Do you have a defense?"
He urges all employers to create a complete file of carefully crafted documents for each employee as protection in the event of any kind of hiring lawsuit, and obtain reference releases from each of its employees at their times of hire.
(John Gilliland has reviewed the reference forms from Humetrics Inc. in the following article, and found them first-rate. Because hiring laws differ somewhat from state to state, he advises having your attorney review any forms you use.)
Reference
1. The Board of County Commissioners of Dona Ana County, Defendant-Appellee, No. 19176, 1999 WL 614019, N.M. Appellate(July 13, 1999).
• John Gilliland, Attorney at Law, Gilliland & Associates, 211 Grandview Drive, Suite 205, Covington, KY 41017. Telephone: (606) 344-8515. Fax: (606) 344-8515.
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