If You Don’t Have Anything Nice to Say, You’d Better Say It

Bad-mouthing former employees may not be very gracious, but it is legally acceptable--even mandatory--in certain circumstances, thanks to a ruling Monday by the California Supreme Court.

But the ruling also may mean that many large companies that are already tight-lipped when asked for references about ex-employees are now likely to clam up even more, employment law experts say.

What does this decision mean to employers--both former and prospective--as well as to people looking for jobs? Here are some questions and answers:

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Q. What did the California Supreme Court do?

A. The court ruled that an employer who provides a positive recommendation for a former worker must also mention any misconduct that could physically endanger others, or the employer could face the possibility of monetary damages.

The court unanimously reinstated a lawsuit brought by a teenager who claimed that she was molested by the vice principal of her Central Valley middle school. The man, Robert Gadams, eventually pleaded guilty to unlawful touching of a minor.

The girl, known as Randi W., sued Gadams, the middle school and three other school districts where Gadams had once worked. Officials at those districts had provided glowing reference letters that failed to mention allegations--none ever proven--of alleged sexual misconduct with students.

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Q. What does it mean for former employers who are asked to provide references?

A. Employers had enjoyed some limited protection when providing negative information about former employees, as long as they had a reasonable basis for providing the information and did so with no malice.

Now employers, particularly in cases involving public safety, might become even more hesitant to give out good information. The California Supreme Court ruling appears to give employers two choices: Reveal everything, or reveal nothing.

The justices did note that employers are not obligated to point out all of a worker’s flaws, such as too many absences or a tendency toward disorganization. Employers can get themselves off the hook by writing a “no comment” letter, they said.

Richard Simmons, a Los Angeles management lawyer and author of two books on employment law issues, estimates that about 50% to 60% of large employers give no more than confirmation of employment, dates of service and job title. Roughly 30% provide even less help; that group either refuses to provide any information or will only confirm information that the caller already has.

As a result of this ruling, Simmons said, many of the firms that say little already will start saying even less or will refuse to help altogether.

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Q. What about prospective employers who are trying to make a hiring decision?

A. “Employers doing hiring are going to be more in the dark than ever,” said Angel Gomez III, a Santa Monica employment lawyer.

Those employers may have lost a valuable tool in the quest to avoid costly hiring mistakes, said Lynn Taylor, spokeswoman for Robert Half International, a San Francisco-based company that pioneered the idea of employment services that provide specialized employees for temporary or permanent jobs.

“The reference is important, and this is a difficult area,” Taylor said. “Companies still have to try their very best to get information. They have to be more innovative.”

That means more and longer interviews with potential employees. More companies will put greater emphasis on probationary employment periods. And firms will find themselves spending more money on testing potential employees. Employers use such things as drug testing, intelligence testing and even handwriting analyses.

“They might start reading the number of bumps on your head,” quipped Dereck Andrade, spokesman for Encino-based Pinkerton’s Inc., the longtime security firm that is among the leaders in the growing field of pre-employment background checks. That flourishing industry is expected to benefit from Monday’s ruling.

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Q. What happens in a pre-employment background check?

A. A growing number of corporate security firms, detective agencies and credit bureaus offer their services to employers interested in digging deeply into the background of job applicants.

For a cost of anywhere between $20 and more than $200, these firms check computer databases or comb through court, credit and driving records. Sometimes they gain access to medical histories, job-injury claims and police reports.

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Q. Where does this leave people who want to change jobs?

A. “It’s terrible for job seekers,” said Frank Cronin, an Irvine lawyer. “This hurts good employees who are trying to transition in their careers more than bad employees. It’s the good employee that employers have always made the extra effort for” by writing a positive letter of recommendation.

Job hunters must be more diligent when it comes to the basics, such as taking extra care with their resume. And, by all means, avoid gaffes like this one, discovered on an actual resume, according to Robert Half, founder of the Robert Half International:

“References: None. I’ve left a path of destruction behind me.”

Times staff writer Stuart Silverstein contributed to this story.