Legal Considerations When Writing Letters Of Recommendations

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Often, former employees look to you, as their former employer, for letters of recommendation. That former employee was good to you and a good worker, and you may be inclined to help him or her find new employment. Although you are encouraged to help others out, there are some legal aspects to letters of recommendation that you should be aware of, before simply writing anything in such a letter.

Defamation Concerns

One major concern is defamation. Defamation is telling someone else (or writing to someone else) a false statement of fact about another person.

Even if you write a glowing letter of recommendation, a side sentence or small comment that can be viewed as potentially negative, can lead to a lawsuit for defamation. Just make sure if you write anything in your letter that can be seen as negative you have the facts to back the statement up, if challenged later on.

The good news is that recommendation letter writers do have some immunity from defamation, under principles of qualified privilege. So long as you don’t write anything with actual malice–the intent to hurt someone–you will be safe from defamation suits.

Liability for What You Don’t Write

Before you say you’ll never write letters of recommendation, there are pitfalls in that as well. Third parties can potentially sue you, if you didn’t tell a new employer something about an old employee.

For example, let’s assume that you know that Worker Tom had problems with allegations of sexual harassment against women in the workplace. Tom asks you for a recommendation letter, and you opt to keep out the sexual harassment from the letter.

Later, at his new employment, Tom sexually assaults a co-employee, or a customer. The victim of that crime can potentially sue you, for failing to tell Tom’s new employer of Tom’s questionable history.

Privacy

Privacy can be an issue also. Anything that could relate to medical information is protected by federal HIPAA laws. The same applies to student records, or any other information that the law considers to be private. Simply asking you to write a letter of recommendation, is not the employee’s consent to divulge otherwise private information.

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There is also the concern of the letter being used as evidence against you. Let’s look at Tom in our example above. Let’s say that after he leaves your company, Tom says he was fired by you. for being a minority. You, of course, contend Tom left because he was harassing other employees.

Tom disputes this. As proof he shows your glowing recommendation letter, which didn’t contain one word about harassing anybody. Tom can use your letter against you, to undermine the reasons why he was fired (and the same would hold true if Tom were denied a promotion, or has some other adverse decision made against him at work).

Make sure you understand the legal aspects to the things that you write. Call the West Palm Beach business litigation attorneys at Pike & Lustig today.

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