At many American companies, managers face gag orders that make prisoners of war look positively chatty. Forget "name, rank, and serial number." When someone asks for references on a potential hire, these bosses are supposed to reveal only job titles and dates of employment.
Never mind that the employee pilfered office supplies, harassed the receptionist, or threatened co-workers. In the lawsuit-phobic world of corporate America, caution keeps many lips zipped tight, everywhere from the factory floor to the human-resources office.
But a chorus of legal experts and employment consultants is calling for a return to the days when job references flowed more freely and managers didn't need to break rules to criticize - or compliment - an employee. "I do see why employers are very cautious, but the policies put a lot of wackos out there in the workplace because people don't share information," says Peggy Garrity, a Santa Monica, Calif., attorney who represents employees.
While reliable numbers are hard to come by, it appears that about 70 to 80 percent of American companies forbid employees from giving out extensive references, says J.H. Verkerke, professor of law at the University of Virginia.
Currently stirring the pot is the case of Charles Cullen, a New Jersey nurse who has admitted killing as many as 40 patients with lethal drug injections.
During his 16-year career, four hospitals and one nursing home fired him, another hospital suspended him, and another questioned him about a patient's suspicious death. But Mr. Cullen kept getting new nursing jobs until late last year, when Somerset Medical Center in Somerville, N.J., looked into questionable lab results involving patients under his care. Authorities arrested him in December and charged him with murder. Several of the facilities now face lawsuits from relatives of the murdered patients. But late last month, officials in Pennsylvania cleared five medical facilities there of ethical violations, saying that they did launch limited background checks and reported suspicious deaths.
The demise of job references began about two decades ago as companies began to worry about defamation lawsuits if they gave poor references. "That's the fundamental issue, from an employer's perspective," said Scott Silverman, a Los Angeles employment attorney who represents companies. "If they have something bad to say, they're better off not saying anything at all. I don't think you can get into trouble if you say nothing."
Indeed, saying nothing usually inoculates employers from lawsuits compared to, say, varnishing the truth. In some cases, managers have been hauled into court because they gave positive references without revealing an employee's history of violence or inappropriate sexual behavior.
In a landmark 1997 state supreme court case in California, a school district lost a suit after providing glowing recommendations for Robert Gadams, an administrator who had a history of harassing girls and was forced to resign.
"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."