ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, January 14, 1996 TAG: 9601120077
SECTION: BUSINESS PAGE: G1 EDITION: METRO
COLUMN: Employment
SOURCE: JEFF STURGEON
Comair, a commuter carrier for Delta Air Lines, recommends one of its pilots for dismissal because he has trouble landing planes and other problems flying safely. The pilot resigns. He is then hired by American Eagle, a similar carrier serving American Airlines. In December 1994, that pilot's mistake in the cockpit of a flight bound for Raleigh-Durham International Airport leads to the crash of the airplane. The pilot, Michael Patrick Hillis, the co-pilot and 13 passengers die.
It's a true story, according to the National Transportation Safety Board, and one that is being retold as employment experts in Roanoke write a proposed reference-checking law that is supposed to help Virginia employers avoid hiring problem employees.
In the past 10 to 15 years, many employers have stopped giving references about former employees. They fear lawsuits charging defamation or slander. In such suits, the former employee contends a bad reference cost the opportunity of getting a new job. For companies, the lawsuits usually lead down one of two paths. Either the company incurs high costs to defend itself, or it loses and gets hit with a large jury award.
Attorneys who advise employers ``are sitting there saying, `Don't give any references. Don't say anything,''' said Bud Oakey, a lobbyist for the Roanoke Regional Chamber of Commerce and other Virginia chambers.
Employers, when asked to give a reference, often will reveal little more than a worker's hire date and when he or she last worked - especially when employers don't know and trust the caller.
If employers say something more controversial, they face being roped into proving the statement to a judge or jury. In the legal arena, if a personnel director can't prove what he or she said about a former employee, the person about whom the reference was given can win the legal case.
Agnis Chakravorty, a principal at the Center for Employment Law in Roanoke, said it's essential to judge each case individually but gave this hypothetical situation, which any employer could face: ``Let's say you believe someone is stealing and you discharge that person. If another person calls and says, `Why did you let that person go?' if you say, `Well, she was stealing,' you've got to be able to prove the person was stealing or it's defamation,'' Chakravorty said.
The quick-to-sue atmosphere surrounding employment has also chilled the giving of positive references to a great degree.
This has created a frustrating dilemma for employers, because they risk becoming vulnerable to negligence lawsuits if they don't check the backgrounds of prospective employees before hiring them. The taboo against giving references also hurts good employees, who may have no one to vouch for their achievements, Oakey said.
The Society for Human Resource Management, a national trade group, is urging its state chapters to write laws to enhance the exchange of employer references. Ten states have such laws.
One who is leading the drive for a law in Virginia is Bruce M. Wood, the society's statewide legislative director and president of The Management Association of Western Virginia in Roanoke, a nonprofit corporation that provides services to member employers on employee relations.
Working with the chamber's Oakey, Chakravorty and Roanoke labor lawyers Clint Morse and David Paxton, Wood has generated a proposal that he and the Virginia Chamber of Commerce want to get passed during the General Assembly session that started last week. A sponsor for the bill had not been announced.
Wood said Virginia judges have tried to shield employers from frivolous lawsuits over references by dismissing such cases. These past rulings are the law. But Wood and the rest of the team believe employers need the case law converted to state law and protections strengthened before they will feel it is safe to give references.
``If they see a statute, it gives them more comfort,'' Chakravorty said.
The law would specify that employers can give factual references about ex-employees - both positive and negative comments. Those who bring suits would have to meet a standard of proof that's higher than normal for civil cases. Employers would not lose in court unless they spread damaging information they knew or should have known was false.
Workers would still be able to collect damages if they were harmed by references that were untrue and given maliciously.
In the case of the American Eagle pilot, the airline has said it did not know before hiring him that he had been recommended for dismissal. The safety board's file on the case indicated that American Eagle likely ran up against a policy at most airlines of saying little about former employees except their dates of employment, positions held, and sometimes, the reason for leaving, because the airlines don't want to be sued.
American Eagle has urged Congress to free airlines to speak openly about the performance of pilots by creating a system for them to exchange information and by giving airlines immunity from lawsuits over the sharing of personnel records.
The issue will be one to watch as the Virginia General Assembly and Congress decide how to proceed.
LENGTH: Medium: 92 linesby CNB