Surprising Mistakes Employers May Face

Running a business these days has become increasingly complicated. With employment-related claims and lawsuits on the rise, management must have a basic understanding of numerous federal, state and local laws. Here are three cases that illustrate some employer liability trends.

1. Giving a positive reference could cost millions. This court case, involving reference checks about a drug-addicted physician, reminds employers of the risks of recommending former employees and associates.

What to Do When Asked
About Former Employees?

Here are some steps for employers to consider in dealing with requests for information about former employees:
Get professional input. Confer with an attorney familiar with employment law in your state about how to respond to reference check inquiries concerning former employees.
Check state law. Know if your state law shields employers from civil liability when providing factual, work-related information about former employees.
Obtain permission from former employees. Before releasing information about former employees, require the prospective new employer to provide a reference permission form, signed by the former employee, giving your company and supervisors the employee’s permission to release work-related information about him or her. This form also releases former employers and supervisors from liability for providing factual work-related information to prospective new employers.
Ask departing employees for help. When employees leave employment, ask them to help write their job references. Have an exit interview with each departing employee. Show them a written summary of their performance. Inform employees that the summary serves as a job reference if two conditions are met: the employee gives written approval for the summary, and in the future, the employee mails the employer a signed statement releasing the summary to a prospective employer.
Stick to the facts. Don’t share personal feelings and opinions about former employees. Provide prospective employers with only objective, factual work-related information such as: the individual’s period of employment, including start and separation dates; positions and duties employed; hourly rates or salary at time of separation; and whether the individual would be re-employed in the future.
Avoid giving information over the phone. It is best to ask the prospective employer to request information in writing with specific questions. Respond in writing. Review responses with an attorney or a human resources professional. This way, your company and its managers will take time to carefully consider the information, and there is a written document to support a defense in case of related future litigation.

Facts of the case: Robert Berry was a licensed anesthesiologist in Louisiana and a shareholder in a medical practice, which exclusively provided anesthesia services to a local hospital. After an investigation, Berry’s partners found he was abusing the drug Demerol. Eventually, the hospital stopped allowing Berry to practice there and the medical practice partners fired him.

The termination letter the partners gave Berry stated: “…you have reported to work in an impaired physical, mental, and emotional state. Your impaired condition has prevented you from properly performing your duties and puts our patients at significant risk…”

A few months later, Berry applied for a job at Kadlec Medical Center in Washington State. Kadlec initiated a background check, including examining referral letters provided from the Louisiana medical practice and hospital.

Letters from two former partners stated, according to court documents, that Berry “was an excellent anesthesiologist” … “recommend him highly” … and that Berry is sure to be “an asset to [future employer’s] anesthesia service.”

The hospital’s response to a questionnaire from Kadlec about Berry was brief: “Our records indicate that Dr. Robert L. Berry was on the Active Medical Staff at Lakeview Regional Medical Center in the field of Anesthesiology from March 04, 1997 through September 04, 2001.”

Kadlec hired Berry and a short time later, problems developed. In one incident, one of Berry’s patients was severely injured. The court noted: “Dr. Berry later admitted to Kadlec staff that he had been diverting and using Demerol…and that he had become addicted …”

The injured patient’s family sued Berry and Kadlec in cases that were settled.

Kadlec and its insurer then filed suit in Louisiana against Berry’s former medical practice, partners, and the hospital charging “intentional misrepresentation, negligent misrepresentation, strict responsibility misrepresentation, and general negligence.” A jury awarded Kadlec and the insurer $8.24 million.

In the U.S. Court of Appeals, a two-part decision was handed down. The court — based on Louisiana state law — found the hospital was justified in providing a “name, rank, and serial number” reference letter. In other words, it gave limited factual information about employment. The court exonerated the hospital because it had no affirmative duty to disclose negative information about Berry.

However, the court upheld the jury’s decision against the medical practice because of the partners’ misleading letters about Berry, stating: “The defendants owed a duty to Kadlec to avoid affirmative misrepresentation in the referral letters. In Louisiana, ‘although a party may keep absolute silence and violate no rule of law or equity,…if he volunteers to speak and to convey information which may influence the conduct of another party, he is bound to [disclose] the whole truth.” (Kadlec Medical Center v. Lakeview Anesthesia Associates and Lakeview Medical Center)

Lesson for Employers: Although this case involves Louisiana state law, its results are an alert to employers. It highlights the importance of knowing how state law and state court decisions treat the obligations and liabilities of providing information and references on former employees and associates.

2. Hiring and promoting one gender over another is illegal. Razzoo’s, a Dallas/Fort Worth-based restaurant chain, must pay $1 million and furnish remedial relief to settle a sex discrimination lawsuit filed by the EEOC. The EEOC had charged Razzoo’s with discriminating against a class of male applicants and employees.

The EEOC charged that Razzoo’s refused to hire or promote men to the position of bartender in its restaurants. The chain had a plan for an 80-20 ratio of women to men behind the bar, according to the EEOC. Men who worked as servers at the restaurants were generally denied promotion to bartender because of their gender. The few men who were promoted to bartender were not allowed to work lucrative “girls-only” bartending events. The case was settled in May before going to trial. (EEOC v. Razzoo’s, Civil Action No. 3:05-CV-0562-P, Northern District of Texas, Dallas Division).

Lesson for Employers: Explained Suzanne M. Anderson, EEOC supervisory trial attorney and lead counsel on the lawsuit. “Razzoo’s decision to hire and promote by gender is a clear violation of federal law. A hiring ratio is illegal whether it is 80-20 whites to blacks or 80-20 women to men.”

3. Allowing any type of music to be played on the job can create a hostile work environment. A major Silicon Valley manufacturer of semiconductor production equipment must pay $168,000 to settle a racial harassment and retaliation lawsuit brought by the EEOC.

The EEOC charged Novellus Systems, Inc. with subjecting an African American employee to racial harassment after a co-worker played and “rapped” out loud to music lyrics that included anti-black racial epithets.

The employee complained several times to his supervisors that the language was offensive to him. The EEOC’s lawsuit charged that delaying effective corrective action by more than half a year constitutes unlawful harassment, and that Cooke was fired in retaliation for his earlier complaints.

While Novellus denied liability and admitted no wrongdoing, it agreed to incorporate a “Statement of Zero-Tolerance Policy and Equality Objectives” in employment policies. Additionally, the manufacturer agreed to amend its policies to refer specifically to harassment through the playing of music, and to include offensive musical lyrics in its examples of racial harassment.

Lesson for Employers: The EEOC’s attorney noted that employers must respond promptly after being put on notice of racially offensive language or conduct in the workplace.

Acting EEOC District Director Michael Baldonado added that many employers face this kind of situation. “How do you manage the culture clash — across generations, race and ethnicity, you name it — in a workplace that gets more diverse every day? I think it’s critical to try to put yourself into the shoes of the other person and take all complaints of discrimination seriously. Together we can try to defuse tensions and prevent situations from developing into discrimination and harassment.”

These three issues are just a sample of the challenges facing employers today. Consult with an experienced attorney to help protect your company from current and future risks.