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Giving references; legal eagles jump on in....
This might be an urban legend, but here's the law as I understand it: Employers, by law are not supposed to give bad references. Typically, they can only verify employment and dates worked and any good qualities about a former employee. It is illegal to provide information which may deter future employment. Are we (photographers and models) held to the same legal standard, especially models who hire photographers and photographers who hire models? Feb 24 06 12:57 am Link Interesting...I'm curious about this as well. I'd never heard that, but it's not like I've ever been used as a reference either. I do know that one of the questions many managers ask when verifying references is the old "would you hire this person again"... Feb 24 06 12:59 am Link lol Where did you hear this and why would references even be allowed if the person giving references can only say "good" stuff. Most people applying for a job do not list those who would give them a "bad" reference. To do so would be stupid. Regards, Denoy Feb 24 06 01:06 am Link Since about the 1970's - 1980's, employers are more careful about the references they give on former employees than before. Americans are more litigious now than in past years, more likely to claim in court that they've been unfairly maligned by a negative reference. Also, federal and state anti-discrimation laws protect women, minorities, the elderly, and the handicapped from unlawful discrimination, providing some litigious members of those groups who may feel aggrieved with a reason to sue. But can employers legally give bad references? Of course they can. The First Amendment hasn't been repealed yet. Feb 24 06 01:35 am Link i know from first hand experience that while it may be "illegal" for a previous employer to give any more information than verifying employment dates and wages, that doesn't mean they WON'T give more than that... especially if the company is not only locally owned, but the owners are one of the riches families in town. they don't care if you sue them, they can afford a much better lawyer than you of course that's when you sit back for 6 months and collect unemployment  Feb 24 06 01:43 am Link A number of companies have policies against giving bad references since if they poormouth someone (even justifiably) it can leave them open to a hellecious lawsuit. Some of those companies went to a "name, rank, and serial number" policy for any references because they realized if they gave some people glowing reccomendations & said nothing about others it'd be apparent the "nothings" were trouble. So this fear of litigation has many of them now only doing "employment confirmation" IE "Yes, he worked here for X years, thank you" and saying no more. But it's not a LAW or anything. If you give someone here (or elsewhere in the photo/model biz) a poor reference that person could charge you with slander. It's iffy whether they'd win, but if they do it in civil court burden of proof is lower & they can bankrupt you just in court fees. This is not a legal opinion, I'm just noting that people can sue you for about anything & fighting it can cost. Stuff to consider  Feb 24 06 01:50 am Link My wife has a good back ground in Human Resources, and California is THE toughest state to be a HR professional. The laws are always changing, and in favor of the employee. Probably the reason why so many employers are leaving California. But that's another story. My wife worked with a company where they did not divulge anything, but confirmation to the former employee working there... and whether that person is "rehireable" with there company again. So, there was not much work history info given out, but only if this person could return to work again. Even just that answer might be enough to tell a prospective employer not to hire this applicant. No company... no matter the size, wants to spend it's resources and time fighting law suits in court. So, as photographers and models, all we have to really pass on, is whether we'd work with a specific person again. I don't know if this is enough to sway anybody... but maybe that and checking references, might help make decisions. Feb 24 06 02:02 am Link SLE Photography wrote: It is only slander if it isn't true. And the person calling for the reference isn't going to go back and tell the person why they were not chosen. They will just simply let the person know they picked someone else. Feb 24 06 02:03 am Link Since models are not employees, they do not fall under employment laws per say. It is not illegal to give an honest assessment or state true facts about business relationships to third parties in which NDAs (Non Disclosure Agreements) were not signed (unless of course you are a doctor and models are your patients - then the HIPAA Act applies). You are free to say all the bad things you want about me as long as you can prove that they are true and that it is not done with malicious intent. Otherwise, I can sue your ass in civil court for slander - and waste a lot of money in a frivolous attempt to get even. Feb 24 06 02:15 am Link In no jurisdiction of which I am aware is it unlawful to give an employee a bad reference so long as the reference is a) factual and b) does not contain privileged or otherwise lawfully protected information. In all US jurisdictions of which I am aware, absent specific legal protections (e.g., disclosing HIPAA-protected health information) truth is an absolute defense to any potential claim of libel or slander which might be associated as a civil tort with giving such a reference. That being said, as our company's counsel, I have given the office manager specific and explicit instructions that requests for references are to be answered with: "Yes, $FORMEREMPLOYEE worked here from $STARTDATE to $ENDDATE. No further information is available." The reason being that you don't have to be right to sue. If we give someone a bad reference and it costs them a job, they can sue us. If we give someone a GOOD reference and they don't work out, some bored lawyer could work out a way for the new employer to sue us. Giving references is all risk, no reward. (There's nothing in it for us either way.) So we simply don't do it. It's sad that we have to take this approach, but I have a duty to protect the interests of my client and that, in my opinion, is the best way to do that. M Feb 24 06 09:30 am Link St. Marc has it right, 100% In general, our references go one of two ways here. A. $employee walks on water and makes wine out of said water, or B. I am sorry, although $employee worked here from $startdate until $enddate, I am not allowed to disclose anything about his work performance. The second one, although perfectly safe, sends up red flags to any potential employer, and is the equivilent of saying "He stole from us, Molested the boss' daughter, Ran off with the VP's wife and embezzelled 2 million dollars, all on the first day!!!" I know companies that have been sued for all sorts of "wrongful termination" and "slander" claims, mainly because the person suing wants a settlement. Do not give them ammo. I said it before I will say it again. When asked about a model, Photographers that can not say anything nice should simply say, "I have nothing to say in reference to $model" and Models Especially should never say anything bad about photographers (I know it seems so unfair, but you are the commodity here, and the better you look, the better you sell. never forget the business end of things) Feb 24 06 10:18 am Link StMarc wrote: This is perfect advice for any company. A bad reference is perfectly legal so long as it is true. But because disgruntled former employees have a tendency to sue (slander, libel), whether they are right or wrong. So a company can spend a lot of money on lawyers defending themselves, even if they have done nothing wrong. So the safest thing to do is to say nothing at all. Feb 24 06 11:45 am Link |
