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12 Emp. Resp. & Rts. J. 1 (2000)

handle is hein.journals/emprrj12 and id is 1 raw text is: Employee Responsibilities and Rights Journal, Vol. 12, No. 1, 2000 Betwixt and Between: The Dilemma of Employee References Beverly L. Little1'2 and Daphne Sipes Concerns have arisen over employers' collection and sharing of information about employ- ees, especially employment references. As a result of the dramatic growth in the number of lawsuits brought by employees, many employers have seriously curtailed the informa- tion they release concerning current and former employees. However, even the refusal to release information carries a legal risk. Employers who do not obtain information con- cerning applicants can be liable for negligent hiring, and those who knowingly withhold negative information regarding their former employees may be liable for negligent referral. This paper explores these expanding liabilities and suggests strategies to allow employers to manage the risk of communicating employee references. KEY WORDS: employee references; defamation; negligent hiring; negligent referral. INTRODUCTION The employment relationship has become more litigious attributable, in part, to em- ployers' frustration over the collection, use, and exchange of relevant information essential to attracting competent and productive employees. During the last few decades, privacy concerns have increased over the use of information collected about employees, their rights of access to such information, and the use of that information by their previous and future employers. One consequence has been a dramatic growth in the number of defamation lawsuits brought by employees against employers. Based on research using the Westlaw service, Paetzold and Willborn (1992) found 25 employment-related defamation suits dur- ing the period 1965-1969 and 118 during the period 1985-1989. Although the free flow of information is vital to safety and productivity in the workplace, many employers have seriously curtailed the amount and type of information they collect and release concerning current and former employees. Yet even the refusal to release information carries a legal risk. Employers who do not obtain and use information concerning employees' former ac- tions can be found liable for damages resulting from employees' actions, and those who knowingly withhold negative information regarding their former employees may be held liable to the new employer and even to others injured by the employee. This paper explores 'Western Carolina University, Cullowhee, North Carolina 28723. 2To whom correspondence should be addressed. e-mail: little@wcu.edu. 1 0892-7545/00/0300-0001$18.00/0 © 2000 Plenum Publishing Corporation

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