Would you hire this man?

"I wouldn't hesitate to recommend Mr. Gadams for any position!" exclaimed a school administrator in Mendota, Calif., going on to laud Gadams' "outstanding rapport" with students, even though he allegedly knew Gadams had given massages and made sexual remarks to female students. Gadams went on to molest a 13-year-old girl at a school that was unaware of his past.

But the laws differ from state to state. In New York, for instance, a court ruling suggests that employers can get away with flat-out lies. "It says you owe no duty to the person you're giving reference information to," Mr. Verkerke says. "If you give a positive reference when in fact the person is horrible, the victim should not look to [legal relief]."

Is it possible to craft references that tell the truth without attracting swarms of attorneys? In the book "The Lexicon of Intentionally Ambiguous Recommendations" (LIAR), an economics professor jokes about sly, litigation-proof lines, such as "I cannot recommend this candidate too highly" and "I would urge you to waste no time in making this candidate an offer of employment."

While they don't usually resort to humor, many managers and bosses do manage to spread the word about poor employees, policy or no policy, says Lewis Maltby, president of the National Workrights Institute. "Smart HR professionals know how to get around the system," says Mr. Maltby, who opposes the gag-order rules.

Bosses and personnel managers don't even need to say anything negative to get messages across. In telephone conversations, tone of voice can add volumes of meaning to a simple "no comment," as can extended sighs and drawn-out syllables ("Oh yes, Daaaaavid. Wellll....").

Dara Herbst, president of the Missouri-based Certified Reference Checking Co., estimates that about 10 percent of the job applicants she investigates have poor work histories. She gets at the truth by using a combination of diplomacy and persistence to encourage managers to break the rules.

"I tell them that they [the applicants] put them as personal references," Ms. Herbst says. "A lot of time they may give you a more personal opinion when you use that word 'personal.' If you're intuitive enough and steer the conversation in the right direction, you get work-related information out of it."

While attorneys including Mr. Silverman continue to advise clients to ignore the entreaties of consultants like Herbst, other legal experts think companies should loosen up. The prospect of lawsuits is overexaggerated, they say, and companies underestimate the harm of passing along bad employees to each other.

"If employees are careful, if they're documenting real performance problems, and the references they give are accurate, they shouldn't have to worry about this too much," says Pauline Kim, professor of law at Washington University in St. Louis.

Ms. Garrity, the Santa Monica attorney, also supports more openness about work records of employees. "Call me crazy," she says, "but the truth is always a good place to start."

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