Jottings By An Employer's Lawyer

Monday, March 01, 2004

More On References, Or Rather, the Lack Thereof

The Christian Science Monitor article, Would you hire this man? uses Charles Cullen, a New Jersey nurse who has admitted killing 40 people, as the poster boy for the problems that occur because of company policies (based on lawyers' advice) to give only neutral information. Although there is a legitimate point to be made about the hindrance to the flow of information, there is also a danger that if you are the employer who chooses to give out negative information, you dramatically increase the chances of a lawsuit. And it is not just defamation, there is also the exposure for retaliation claims if the employee engaged in any protected activity, such as filing a charge of discrimination.

In many ways, the situation reminds one of the the philosophical problem of "the commons," where each herdsman grazing cattle on a common pasture has incentive to act in a selfish way, even though when all do it hurts the common good. When each employer remains mute, they act in their own best interest, notwithstanding that the employer community as a whole may suffer from a lack of good information.

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