THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Saturday, February 1, 1997 TAG: 9702010334
SECTION: BUSINESS PAGE: D1 EDITION: FINAL
SOURCE: BY LON WAGNER, STAFF WRITER
LENGTH: 77 lines
When a prospective employer calls Sentara Health System checking references on one of its workers, Sentara verifies that the person works there, whether he is part time or full time, his job title and salary.
But that's it.
The employer won't catch Sentara saying, ``Well, he shows up late twice a week.'' Nor will Sentara say, ``He's a good hard worker - we'd hate to lose him.''
Sentara, like many companies, fears that if it says anything more than the basics, it could end up fighting a defamation lawsuit.
To combat this, Del. Harry R. ``Bob'' Purkey has introduced the ``employer immunity'' bill. Its purpose: to make it more difficult for a company to be sued for providing information about a worker's job performance.
Companies have become so fearful of such lawsuits that a reference check these days provides little insight into what kind of worker someone might be, said Purkey, a Virginia Beach Republican.
That not only handicaps companies trying to find the best employees but also hurts good workers who deserve a good reference, he said.
The reference-check problem has become more important in today's business environment, he said, because workers are more mobile - either by choice or by downsizing.
``It really creates a hardship on employees who have done absolutely nothing wrong and who are great employees,'' Purkey said.
But the job-reference issue is more complicated than that, employment law experts say.
A legal standard known as ``qualified privilege'' already allows an employer to provide information about a worker as long as it is true and relevant, and information ``the calling party has a right to know,'' said Michael Rankin, one of the owners of a Diamond Bar, Calif., company called Documented Reference Check.
Documented Reference Check charges $79 to prepare a transcript of a phone interview with a worker's former employer. DRC's workers, usually court stenographers, are told to try to sound like a potential employer reviewing a resume, but not to lie. The employer often provides more than ``name, rank and serial number,'' despite company policies, Rankin said.
Three out of 10 times, DRC gets negative information, he says. Then, in some cases, the worker can turn around and sue the employer for defamation. The percentage of negative feedback that Rankin's company gets is likely high because workers who come to DRC already expect they have a reference problem, he said.
``Most employers are ethical; they want to do the right thing and are fair,'' Rankin says. ``The thing is, if it's you being defamed, it doesn't matter if you're a small percentage.''
Newport News attorney Christopher C. North, who represents workers in employment cases, says it is already so difficult to win defamation cases that he rarely takes one on.
Even if Purkey's bill passes, North said it wouldn't stop him from taking on a solid employer defamation case.
A case handed down by the California Supreme Court this week added further confusion to the job reference issue. The court ruled that a company providing a good job reference can be sued for not mentioning misconduct, such as child molesting.
So a bill like the employer immunity law proposed for Virginia has to be solid. It has failed to become law in previous years, Purkey said, because General Assembly members were concerned it might violate a worker's constitutional rights.
The bill has been delayed, for the moment, because Purkey forwarded it to the attorney general's office to make sure it is defensible.
Then there's the issue of the bill being redundant to what is permitted under qualified privilege. Purkey said the issue has to be addressed anyway.
``The law does seem to allow references,'' he said, ``but the actual practice is different.'' MEMO: Staff Writer Laura LaFay contributed to this story.