job references & ethics anthony l. mcmullen, j.d. assistant professor of business law uca...
TRANSCRIPT
Job References & Ethics
Anthony L. McMullen, J.D.
Assistant Professor of Business Law
UCA Department of Accounting
Overview
• Requesting References from Professors• Avoiding Liability from Former
Employees• Avoiding Liability from Other Employers
References from Professors• Federal Educational Rights and Privacy
Act of 1974• Federal law that gives privacy rights to
students with respect to their educational records
• All schools that receive federal funds must comply (including private colleges and universities)
• While students cannot obtain a monetary judgment for violating FERPA, violations put federal funding at risk.
References from Professors• Federal Educational Rights and Privacy
Act of 1974• Cannot disclose “educational records”
without student’s consent• Grades• Transcripts• Class lists• Course schedules• Financial information• Disciplinary files
References from Professors• Federal Educational Rights and Privacy
Act of 1974• Cannot disclose personally identifiable
information
• Can disclose “directory information” unless student instructs school not to disclose
References from Professors• Federal Educational Rights and Privacy
Act of 1974• FERPA does not cover personal observations
of the student’s activities and performance.• Example: FERPA would protect a student’s grade
on a specific assignment. It would not protect a professor’s observation of interaction with students.
• Example: FERPA probably protects attendance records, but it would not protect the observation that the student regularly tardy.
References from Professors• Federal Educational Rights and Privacy
Act of 1974• Students may waive their rights under
FERPA.
• Many professors are requiring students to sign FERPA waivers before agreeing to give letters of recommendation or reference.
References from Employers• Most employers have become so fearful
of lawsuits that they are afraid to give references or recommendations.
• Most fears, however, are unfounded (unless the employer does something really dumb).
References from Employers• Defamation• A false statement of fact about the plaintiff• Publication of the statement by the
defendant• Harm to the plaintiff’s reputation
References from Employers• Qualified Privilege• A qualified privilege is recognized in many
cases where the publisher and the recipient have a common interest or duty, and the communication is of a kind reasonably calculated to protect or further it. It is a condition and qualification of the privilege that the utterance must be exercised in a reasonable manner and for a proper purpose. Therefore, if the person making the statement steps outside the bounds of the privilege or abuses the privilege, the qualified privilege is lost.
References from Employers• Tortious Interference with a Contract• Existence of a valid contractual relationship• Knowledge of the relationship by the
defendant• Intentional interference inducing or causing
a breach or termination of the relationship• Damages to the plaintiff• Improper conduct by the defendant
References from Employers• Intentional Infliction of Emotional
Distress (Outrage)• The defendant intended to inflict emotional
distress or should have known that his conduct would result in emotional distress• The conduct was extreme and outrageous,
was beyond all possible bounds of decency, and was utterly intolerable in a civilized community• The defendant’s actions caused the
plaintiff’s distress• The plaintiff’s emotional distress was so
severe that no reasonable person could be expected to endure it
References from Employers• Intentional Infliction of Emotional
Distress (Outrage)• Courts have taken a narrow view of claims
that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will frequently feel considerable insult when discharged.
References from Employers• Behavior that did not meet the standard• Strained working relationships, deliberate
attempts to undermine the employee’s authority, and false accusations of shoddy work and mental illness• Cutting off dental benefits mid-procedure
and calling the employing a “lazy s.o.b.”• Cursing, speaking angrily, and inquiring into
employee’s personal life• Verbal abuse and misrepresenting cause for
termination• False accusations of drunkenness and fraud
and encourages others to report on employee
References from Employers• False Light Invasion of Privacy• The false light in which the plaintiff was
placed by the publicity would be highly offensive to a reasonable person• The defendant had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed
References from Employers• Ark. Code Ann. § 11-3-204• With written consent from the employee, a
current or former employer may disclosure:• Date and duration of employment• Current pay rate and wage history• Job description and duties• The last written performance evaluation• Attendance information
References from Employers• Ark. Code Ann. § 11-3-204• With written consent from the employee, a
current or former employer may disclosure:• Results of drug or alcohol tests (going back one
year)• Threats of violence, harassing acts, or threatening
behavior related to the workplace or directed at another employee
• Whether the employee was voluntarily or involuntarily separated from employment and reasons for the separation
• Whether the employee is eligible for rehire
References from Employers• Ark. Code Ann. § 11-3-204• The consent should either be (1) on a
separate form from the application or (2) if on the application, in bold letters and in large print.
• “I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).”
References from Employers• Ark. Code Ann. § 11-3-204• The consent is valid only as long as the
application is considered active by the prospective employer.
• If the applicant is hired and remains employed for more than six months, the consent expires at six months.
• If the applicant is hired and remains employed for less than six months, the consent expires six months after termination of employment.
References from Employers• Ark. Code Ann. § 11-3-204• The current or former employer disclosing
the information is presumed to be acting in good faith and is immune from civil liability for the disclosure or any consequences of the disclosure unless the presumption of good faith is rebutted upon a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.
Liability to Other Employers• Do those giving recommendations have
any duty to whom they are proving those recommendations?
• Past employers generally owe no duty to warn prospective employers of a past employee’s known dangerous propensities. However, a few state courts like those in California, Colorado, New Mexico, Pennsylvania, and Texas do hold employers liable for positive references given voluntarily that “fail to disclose negative information.”
Liability to Other Employers• Randi W. v. Muroc Jooint Unified School
District• California Supreme Court• Between 1985 and 1991, Gadams worked in
three different school districts. All gave glowing recommendations despite being aware of serious sexual misconduct.• Gadams was hired by a school, where he
molested a 13-year-old student
Liability to Other Employers• Randi W. v. Muroc Jooint Unified School
District• While there was no duty to warn prospective
employers about the past employee’s dangerous propensities, past employers cannot mislead the prospective employer with half-truths.
General Tips
• Obtain a waiver whenever possible.
• If you cannot give a positive recommendation, consider whether you should give one at all.
• If you terminated the employee, warn the employee that you will be unable to give a positive recommendation.
General Tips
• Be specific. Avoid generalities.• No: He was always late to work.• Yes: Last month, he arrived to work late on
ten occasions.
• No: She is an alcoholic.• Yes: She appeared to be intoxicated at work
on three occasions.
• No: He is a lazy employee.• Yes: He never worked an hour of overtime
and was consistently out of the office by 5:00 p.m.
General Tips
• If you have documentation, rely on your documentation. (If you don’t have documentation, consider some documentation system.)
• To the extent that you can, do not disclosure personally identifiable information.
• Be honest and report in good faith. If you are not sure, do not say it.
