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Patricia Hunt Sinacole | JOB DOC

With 'personal reference,' employer may be attempting to limit liability

Email|Print|Single Page| Text size + By Patricia Hunt Sinacole
March 30, 2008

Q. My employer has a policy that all employment reference requests must be forwarded to human resources, and supervisors and co-workers are not allowed to give employment references because of liability concerns. When I asked HR for some clarification about this policy I was told that "personal" references are allowed, although it is not officially stated in the policy. Most staff interpret "personal" references to mean references not on the organization's letterhead or from their home phone or e-mail address. Can you tell me what the difference is between a personal reference and a regular employment reference?

A. If it is based on an employee's performance, I don't quite see the difference, but perhaps there is some legal difference. References are a controversial topic these days. A company hiring a new employee wants information about the candidate's work history and performance. Yet companies are very often counseled only to provide limited information (if any) about former employees.

Most commonly, many of my clients only verify that the former employee worked there and the dates they were employed by that company; lastly they may confirm a job title. I consulted attorney David Ward, a partner at Michaels, Ward & Rabinovitz, LLP. Ward and I agree there is a distinction between personal references and employment or professional references. A personal reference is from you, an individual, and not on the behalf of your employer. An employment or professional reference is the "official" reference from the employer.

By stating that you are only allowed to give "personal references," your employer may be attempting to control the references given to other employers. In doing so, your employer attempts to limit its liability with respect to any reference it gives to other employers. Ward explains: "If you were to give a reference on behalf of your employer, what you say may create a liability for your employer. If something is said about the employee that is incorrect or inaccurate (whether intended or not), the employee or the prospective employer may bring an action against your company for the incorrect statement(s). Additionally, you may be unable to give a fully informed recommendation of him or her, as you may be unaware of his/her entire employment history."

Liability can occur. For example, what if you give a favorable reference for an employee who poses a known danger? Specifically, what if you provide a positive reference for a former co-worker who has a substance abuse problem and then later, while employed, gets into an automobile accident on company time while driving a company vehicle? Or, what if you provided an inaccurate description of the employee's duties and responsibilities and your former colleague was hired but then made an error costing the company thousands of dollars? A company who later hires one of these employees might allege negligence in the reference for failure to warn if they are harmed by the employee, or the employee could bring an action seeking defamation.

Ward offers another example: A company provides a misleading reference on a former employee stating that "he was terminated in a reduction in force." However, the true reason the employee was terminated was because he sexually harassed several of his co-workers. At his new job, he continued the harassing behavior and his new employer gets sued as a result. The new employer then sues the former employer, for its failure to warn the new employer of the employee's prior conduct. Your company sounds like they are trying to avoid liability. And there are good reasons why they would limit professional or employment references. It is good business practice to do so to minimize any liability. It is also an attempt to avoid having to incur costs and expenses involved in defending potential claims.

Employees may request copies of personnel file

Q. By law, I know I am entitled to review my personnel file, but am I also allowed to make a copy of it for my own records? Also, if I make a copy of it, can I request that my employer sign a statement attesting to the fact that there are no documents being withheld from the file?

A. Most employers maintain personnel or employee files for their employees. Often included in this file are the employee's employment application, resume, tax forms, and performance-related documents. Here, most current and former employees are guaranteed access to personnel records under the Massachusetts Personnel Records Act.

The act requires an employee to submit a written request to an employer. The requesting employee must be allowed to review this file within five business days during normal business hours. An employee may also request a copy of the file (or a portion of the file) and the copies must be provided within five business days from the date of the request. An employee may also request that information maintained in their personnel file be removed or corrected. If an employee feels there is information in his or her file which is incorrect, then the employee has the right to put a statement or memo in his file to dispute or clarify the information contained in the file.

By law, this statement is now required to be part of the employee's personnel record. You can certainly request that your employer sign a statement verifying that there are no documents being withheld from your file. However, I would caution you. And truthfully, I would counsel an employer not to sign such a statement for several reasons. First, there are some issues around the interpretation of what exactly is a personnel record. Yes, most likely it includes the official file that is maintained by the employer in human resources.

However, the definition is even broader than most of us would assume. The law defines a personnel record as any "record kept by an employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action."

With such a broad definition, many professionals interpret this to mean that a personnel record may very well include the records or documents that are not included in the official file, but may be perhaps sitting in a manager's desk. This could include a manager's notes about a recent performance-related discussion. Additionally, the law also states that "a personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink." This certainly adds more confusion with the advent of electronic record keeping and computers.

Also, your request may signal to an employer that you are preparing to file some type of employment-related claim against it. I think it is wiser to simply submit a written request asking for a copy of your personnel records. I would encourage you to be specific - requesting a copy of the contents of your personnel file, any documents your manager(s) or others may have related to your employment and a copy of print out of any computerized files.

Firm mostly within law in making pay change

Q. I have a friend who has been told that his/her position is now considered appropriate for a lower salary group, and he/she should expect a reduction in salary. Is this legal?

A. If so it would seem like any company could avoid termination by simply reducing wages until the employee quit. In most situations, an employer can make changes to an employee's salary group and it is legal. There are some exceptions. If your friend has entered into an employment contract or your friend is a member of a union, this change may not be permissible. Additionally, any compensation change must still comply with federal and state laws like the minimum wage law in Massachusetts. As of January 2008, the minimum wage in Massachusetts for most employees was increased to $8.00 per hour.

There may be some instances where the change to a lower grade group and/or reduced salary could potentially raise some legal flags. For example, if the reduction in salary group and wages followed a situation where he/she voiced a complaint or concern. This could potentially be perceived as retaliation and this may be illegal. Or if this downgrade in salary group and wages followed a leave of absence, illness, or disability, there may be some legal action worth exploring. Many companies evaluate their compensation and benefits programs on a regular basis. Oftentimes, the employer will make changes to maintain a competitive position, reduce costs, or to better reflect local and national trends.

I am unsure as to why your friend's employer would be changing his/her salary group but there could be many reasons. And many of these reasons could be perfectly legal. In Massachusetts, an employer in most situations can amend, revise or change most employment conditions as long as they continue to comply with state and federal laws.

Patricia Hunt Sinacole is president of First Beacon Group LLC, a human resources consulting firm in Hopkinton. E-mail questions to jobdoc@globe.com or mail to Job Doc, Boston Globe, Box 55819, Boston, 02205-5819.

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