Reference Letters: Full Disclosure or No Comment

While an employer normally has no duty to disclose negative information about a former employee, it must include such information to avoid a misrepresentation that could expose others to physical harm, a unanimous California Supreme Court has ruled in a case of first impression. Randi W v. Muroc Joint Unified School District, et al.

In the lawsuit, a 13-year old student alleged she had been sexually assaulted by the vice-principal at her school. The student sued three school districts that had provided letters of recommendation to the placement service through which the vice-principal had been hired.

Those letters of recommendation included glowing phrases such as "I wouldn't hesitate to recommend [him] for any position!", and he was "an upbeat, enthusiastic administrator who relates well to the students and who was in a large part responsible for making the campus … a safe, orderly and clean environment for students and staff." These statements allegedly were made despite knowledge that the vice-principal had prior improper contacts with female students.

In refusing to dismiss the lawsuit, the California Supreme Court held that one who writes letters of recommendation owes prospective employers and third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the prospective employer or third persons. The court reasoned that the conduct alleged is the type society should seek to avoid and that easily can be avoided because employers can either write a "no comment" letter of recommendation or a "full disclosure" letter revealing all relevant facts regarding someone's background.