Like the frustration Frank Costanza felt toward the “more traditional” holidays, departing or former employees often give Human Resources professionals such head and heartaches that drastic measures often feel necessary. Instead of establishing a new holiday like Festivus, the outlet that most frequently presents itself is the reference check inquiry from the employer who has graciously decided to take the problem employee off your hands.

Resist the temptation to take that opportunity to air your grievances. The cathartic feeling will be fleeting if you fall into a trap set by a litigious employee and his or her lawyer. Sue-happy employees have proven repeatedly willing to have relatives or friends pose as prospective employers solely to learn what, if any, information former employers are providing in the reference check process. (And, remember, West Virginia is a one-party state when it comes to recording conversations, meaning as long as one person – here, the family member or friend – consents to the recording, then it is lawful.)

Even more troubling, however, is the cottage industry of services available to aspiring plaintiff-employees. A simple Google search will connect your problem employee with any number of entities willing to help – and in a way sanctioned by the West Virginia Supreme Court of Appeals. A court reporter calls the “target” employer and does his or her best to prod the person on the other end of the phone to offer some unflattering comments about the former employee. The comments are transcribed – like your deposition will be – and provided to the employee and his or her lawyer for a flat fee. Don’t think it happens? Check the Supreme Court of Appeals’ decision in Tudor v. Charleston Area Medical Center, Inc., 203 W. Va. 111, 506 S.E.2d 554 (1997), which found nothing objectionable about the practice and ruled that the transcript was admissible at trial to support the plaintiff’s defamation and tortious interference claims. If that is not scary enough, take a look at where the plaintiff’s lawyer from the Tudor case provided a testimonial for the company’s services.

Moral of the story? Have a reference check policy and stick to it. Otherwise, your airing of grievances could lead to a lawsuit – and an unhappy Festivus.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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