Monday, July 06, 2009

When To Ignore Your Lawyers

Despite their reputations as pit bulls and sharks, lawyers turn into timid mice when advising clients. The only good risk is an avoided risk, and self-preservation is valued more than common sense or human decency. If any hypothetical threat of litigation lies down a given path, legal counsel will advise you to stay at the trailhead.

Diane Stafford's column in last Thursday's KC Star raised the troubling issue of employers refusing to provide references for former employees. It's a common practice for corporate employers to refuse comment on former employees beyond the dates of employment, former job title and, perhaps, whether they are eligible for rehire.

From the risk-loathing view of an over-paid lawyer, this makes perfect sense. There's no direct benefit to the employer from sharing descriptions of the former employee's skills or flaws, and there is an infinitesimal chance that if you say something negative, the employee could (somehow) find out and use it as evidence to support some sort of discrimination claim. Even more hypothetically, if you say nice things about good employees but nothing about bad ones, the bad ones could conceivably (somehow) find out that they aren't getting the same kind of references that the better employees are, and use that fact as evidence to support some sort of discrimination claim.

Whatever.

There's also a chance that flying monkeys might attack your corporate headquarters, so legal counsel advises you to keep the windows closed and locked.

The fact is that we all risk litigation every day, when we drive, when we speak, when we go to the grocery store. The risk of litigation in most things is minuscule for those who are not flaming jerks, and the same goes for corporations. If you treated an employee well during his or her time with you, chances are pretty remote that you're going to get sued, and, if it does happen, the chances are even more remote that a reference setting forth your views are going to be outcome-determinative in a lawsuit.

But as long as that chance exists, dancing somewhere on the head of a pin, corporate counsel will want you to avoid it unless you can articulate a valid reason to face it. And, no, common sense and human decency don't count as valid reasons to corporate counsel.

If you're in a policy-setting role at your company, this is an instance where you should tell your lawyer that you appreciate their advice, but that you're going to provide references on your former employees that are fair, accurate and informative, in the hopes that other employers will similarly help you in your decision-making. It might not be the most conservative legal approach, but it's the right thing to do.

(By the way, this isn't legal advice. This is human being advice. Sometimes they differ.)

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38 Comments:

Anonymous GMC70 said...

As a lawyer, writing to a lawyer: AMEN.

I am completely tired of CYA lawyering. This society spends inordinate time, money, and energy accomplishing nothing except covering its a** to avoid even the possibility of litigation - and giving up tremendous opportunities in the process.

7/06/2009 8:20 AM  
Blogger m.v. said...

I am not a lawyer and I am too ugly for TV but... It's not a "corporation" who provides references, it's a person. In my corporation HR is not even in the same state, they probably can verify my attendance, that's about it. If a local manager is to provide references there is a chance that his/her personal attitude towards you will come in play, maybe you should've remembered to invite them to your beer tasting last year. Lastly long time ago I was fired for fighting on the job, it wasn't my fault and everyone knew that, there were witnesses, etc, but there was 0 tolerance and I was in it so I was out of a job. The fact that my old employer didn't pass this along helped me get another job where I stayed for the next 7-8 years without any problems.Later on my manager at the new place told me that he was friends with my old manager and he privately explained the fight story and gave me high praises and good references.HR person concerned with legal stuff wouldn't be as understanding. Lastly, there is no case law for flying monkey attacks, but there are precedents for bad reference litigation, so these things happen and cost real money.

7/06/2009 8:24 AM  
Anonymous Anonymous said...

This post is really, really bad advice.

MV hit it on the head.

Who decides what performance appraisal to share with the prospective employer?

How about the most recent appraisal? The person applying for the job left after 12 years of service because he/she got re-orged under a real jerk for a manager...and they received a terrible review their last year(that's why they left) while the previous 11 years he/she had stellar interviews.

Someone who leaves a job may be leaving because they can't stand their boss, perhaps for very good reasons. But what are the odds that a mad manager-employee relationship results in a fair review of their performance?

That presents a very real problem.

Maybe someone then averages all of their reviews in the HR department. Who does that and how do they do that? I don't think it's a realistic alternative.

And, if you weren't aware, there are some real bad managers out there that give the rave reviews to really poor/bad performers. People that have a history of EEOC issues, discrimination and sexual harassment get good reviews.

People that have faced many complaints in the work place get good reviews. How do I know that? Corporations are not obligated to share that information - should they?

Is the number of EEOC complaints as relevant as someone's review of job performance?

From a corporate perspective, there is no rational choice other than to confirm service dates.

7/06/2009 3:23 PM  
Anonymous Anonymous said...

In my job, I've hired and fired literally hundreds of people, and I agree absolutely with Dan. What MV says kind of proves him wrong - he got a good reference under the table, and the employer was able to handle the info about the fight. So, he won because nobody followed the system that you attack. Point, Dan.

Anonymous, if you have such crappy managers that they can't be trusted to do reasonable evaluations much less reasonable references, then your problems run deeper than being too chickenshit to tell someone whether an ex-employee shows up sober and on time.

One further point, Dan, and this is IMPORTANT. Don't forget the Missouri Service Letter Statute - it has specific requirements about what MUST be provided. You can give a reference that goes beyond a service letter, but you MUST provide AT LEAST the info required by the statute.

7/06/2009 3:44 PM  
Blogger m.v. said...

My understanding was that "under the table reference" was received after my hiring in a personal conversation and I found out about it long time afterward. I also believe that if the fight was a part of my official record I wouldn't have ever been hired there. I wouldn't think of going to court against my previous employer, but it would have definitely screwed up my employment chances for a long time.

7/06/2009 3:52 PM  
Anonymous Anonymous said...

Anon at 3:44,

You missed my point completely. It's not a question of anybody being chickenshit to tell someone an employee showed up drunk or late, it's called real life.

The vast majority of employee appraisals and appraisal issues - in the real world - concern one's ability to meet objectives, work with others and generally get the job done - and someone's subjective determination of that at a single point in time.

Alcohol and substance abuse problems are much more common if you're managing welders, building trades, servers, and any job categories that pay at or near the minimuum wage. And the people supervising these positions are notoriously bad. Horrible, in fact.

In general (and there are lots of exceptions) you get what you pay for. And if showing up drunk to work is a real risk of a new hire, you ain't paying much for that job or that supervisor.

That wasn't my point, though.

Anon and 3:44, get your head out of your ass - many, if not 51% or more of people in supervisory positions aren't very good at it.

That's the real world.

But of course you're different - you have to contend with people showing up drunk for work, and your supervisors are the best at what they do, right?

Who cares?

That wasn't my point, either.

Here's my point: One bad appraisal from one of the many not-so-good supervisors out there in the real world can destroy one's ability to get another job.

That's why corporate policies are guided and informed based upon case law and REAL WORLD monetary damages awarded.

But all of your managers are good, right? Which means exactly what? Everybody else's managers are just as good as your "perfect" managers?

Sounds like delusional thinking to me.

Anon at 3:44, by a breathylizer and stand right by that time clock....

7/06/2009 4:55 PM  
Blogger craig said...

Dan,
You could have made this a lot shorter. "When to ignore your lawyers" Almost always. Done.
On another note, after reading the body of you post, I assume that you agree with the SCOTUS decision in the New Haven case? I also assume that you favor Tort reform?

7/06/2009 7:21 PM  
Blogger Dan said...

Anon 3:44 - Great point on the Service Letter Statute. I should have mentioned that in my original post.

MV - As I understand your argument, you think it would be best for employers to make decisions with less, rather than more, information. I disagree.

Anonymous 3:23 and 4:55 - So sad to see you react with such heat to an honest disagreement. You're not, by chance, the guy who got into a fight with MV, are you? Regardless of that, though, you're assuming that supervisors are incapable of conveying accurate information, and that hiring people are incapable of reading between the lines. Both assumptions are occasionally true, but, in the vast majority of cases, false.

Finally, the fear of litigation is horribly overstated. It just doesn't happen often enough to warrant refusing to help good former employees and refusing to help other businesses avoid hiring bad employees.

Craig - I don't know and no.

7/06/2009 7:51 PM  
Anonymous Earl said...

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7/06/2009 9:24 PM  
Blogger m.v. said...

Dan, I don't intend to get in a big argument, but as an example, lets say Mayor F. applied for a job and you and TKC are both in position as his previous managers to give him references. Both of you will be providing "more information, not less" to a potential employer but do you think the end result will depend on which one of you provided it?

7/06/2009 10:06 PM  
Anonymous Earl said...

This comment has been removed by a blog administrator.

7/06/2009 10:08 PM  
Anonymous Your World Can Change said...

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7/06/2009 10:14 PM  
Blogger craig said...

WOW Dan,
You sure can bring out the crazies.
WTH does this thread have to do with the last three posts?
I sure don't envy you with those kind of morons cyber-stalking you.

7/06/2009 10:48 PM  
Anonymous Anonymous said...

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7/06/2009 10:59 PM  
Anonymous Earl said...

This comment has been removed by a blog administrator.

7/06/2009 11:04 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7/06/2009 11:08 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7/06/2009 11:18 PM  
Blogger Dan said...

Craig -

I've learned that a certain percentage of the world is crazy, and that internet access is not dependent on mental health.

In the meantime, I have found it necessary to delete comments that attack my family, my employer, or my faith. None of them, I acknowledge, are above criticism, but I'm not going to host attacks on any of them.

7/07/2009 5:38 AM  
Anonymous Earl said...

This comment has been removed by a blog administrator.

7/07/2009 8:00 PM  
Anonymous Sarah Palin, sort of said...

dAN THIS IS GETTING A BIT wacky, I mean your beHAVIOR regarding posts that you DISagree with

7/07/2009 8:15 PM  
Anonymous Earl said...

This comment has been removed by a blog administrator.

7/07/2009 8:15 PM  
Anonymous Earl said...

This comment has been removed by a blog administrator.

7/07/2009 8:18 PM  
Blogger Dan said...

The only posts that are getting deleted are those attacking my family, my faith or my employer.

7/07/2009 8:20 PM  
Anonymous Third Dude said...

Dan I have no idea what your faith is so do the comments say "Dan's Methodist Faith is invite's Bin Laden to do nasty things to our children." If they are idiots, then your readers are mature enough to recognize that.

7/07/2009 8:43 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7/07/2009 8:48 PM  
Blogger Dan said...

Third dude -

Some of my readers are certainly intelligent enough to ignore slime, but some of my other readers are the ones leaving it. They neither need encouragement, nor deserve space.

7/07/2009 8:57 PM  
Anonymous Anonymous said...

I have always thought that the blogger brings this on himself with the blind hero worship of certain public offiicals, and the demonization of their opponents.

7/07/2009 8:58 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7/07/2009 9:04 PM  
Anonymous Third Dude said...

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7/07/2009 9:07 PM  
Blogger Dan said...

Anonymous - Of course the accusation is crazy, but think about the dynamic. Some anonymous coward comes here, tosses out some crazed accusation, and then I'm expected to give it the dignity of a reply? Not only is it a game of whack-a-mole, it's also distracting to the topics that I am attempting to discuss.

7/07/2009 9:12 PM  
Anonymous STOP THIS GREED said...

This comment has been removed by a blog administrator.

7/07/2009 9:26 PM  
Blogger Dan said...

Stop this greed -

Thank you for the spirited defense, but I don't even want to give the accusation the light of day.

7/07/2009 9:30 PM  
Anonymous STOP THIS GREED said...

Dan this is all about your support for the Mayor. These bastards have been paid to torment you! FIGHT BACK

7/07/2009 9:35 PM  
Anonymous Anonymous said...

STOP is right Dan, fight back!

This is all about your support of the mayor.

7/07/2009 9:54 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7/07/2009 10:05 PM  
Anonymous Hondo said...

Dan Ryan supported the man who backed me alive.

7/07/2009 10:19 PM  
Anonymous Anonymous said...

that's baked you alive you moron dog

7/07/2009 10:53 PM  
Anonymous Mrs. Robinson's Cocktail Guest said...

I just have one word to say....

"Catholics".

7/08/2009 10:04 PM  

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