To: Weiss and Alan PC
From: Junior Subordinates
Re: Opinionated Discussion
Negligent Misrepresentation could be considered a viable case against your company. In a way, based from the documents presented (one coming from your company as the standing letter of reference for Mr. Kay) you have provided only little information about the employee. At present, companies who have former employees with records that are important for being referenced in letter of recommendation is an essential part of a former-employer’s responsibility.
In 1977, it was evident how past employers decided on what to place in the letter of references. It could either defame or develop the reputation of the employee who worked for them in the past. However, when 1987 came and the policy of providing basic information of past employees as part of reference letters has been embraced, employers became afraid of being sued by disgruntled past employees for giving “too much” information that could have jeopardized their chances of employment in the new company they are applying in.
The year 1997 however changed the whole process of providing reference letters from one employer to another. The provision of just the basic information has been considered a negligent liability on the part of the past employers giving the character reference letters. This approach to the matter has been considered a more dangerous practice that could put a former employer in a position that would account its responsibility towards the actions of the individual they recommended for employment in another organization. Because of the drastic increase of workplace violence, employers are now more careful in choosing the right individuals to hire to fill in the positions they open for the public to fill. Remarkably, this should also be a primary concern for the former employers as well.
Providing ample information that could provide the new employer a glimpse on the behaviour and personality of the applicant is essential. Take note that in consideration with the new theories that define the need for safer workplaces, former employers are given the responsibility to provide information that could allow the new employers to see what needs to be done regarding the attitude of a person. This especially involves questionable attitudes that may or may have not caused work issues within or even outside their co-employee relations. To develop a more improved understanding on the elements of negligent misrepresentation, listed herein are some of the said elements:
- Someone made a false representation as to a past or existing fact
In this aspect of the negligent misrepresentation, your organization (Weiss and Allan PC) can obviously say that there has been no false representation in the reference letter you have provided. Unaccounted behavioural report cannot be considered as evidence of false representation as you have specifically stated facts in the letter and did clearly did not falsify any data presented along with the letter.
- The person making the belief must have no reasonable ground for believing it to be true
Basically, the new employer of Mr. Kay believed that what has been presented in the letter was true and suffices for their desired understanding on the background of the said employee.
- The representation must have been made with the intent to induce the other party to rely upon it
This was not true especially that you have stated in your letter that if they needed more information, they ought to call; a phrase that simply noted that you were ready to be responsible in case there are other information about the employee that they desire to receive from you.
- The other party must have believed the misrepresentation and reasonably relied on it.
In this case, the Mary, Martin and William PC could say that they did rely on the letter you have sent, however the negligence on not seeing what actually needed assessment in consideration with the information you have provided.
- As a result of the reliance on misrepresentation, the other party suffered damages.
The damages that Ms. Susie S suffered came from the negligence of the new employer and should not be placed upon your responsibility. This means that if the new employer insists that it was due to their belief of your letter’s sufficiency that they did not give attention to the complaint, you could say that your letter specifically stated that they could call for further checking of other data.
Take note that in cases when improper references are provided to the new employer, the former employers are to be held liable for the actions of the employee especially if it involves behaviour that could have been prevented if the notification of the situation was given value early on through the provision of a proper employ-reference letter.
Basing from the document you have provided as a reference-letter, you specifically mentioned the following:
Mr. Kay was employed at this firm from September 1, 2009 to September 1, 2011. During that time he researched and drafted pleadings, motions, and separation agreements. He also conducted depositions and other discovery and made various court appearances on variety of matters. His analytical, writing and research skills are very good, certainly above average for a lawyer only one year out of law school.
Observably, your letter did state when Mr. Kay started his employment with your organization and when he ended it. As you concluded, you have also provided a glimpse of how he is when it comes to work. What your reference letter lacks is the behavioural background on the employee you are referring to the new employer. Notably, you should have placed information regarding how Mr. Kay did treat his co-workers, how he is with his subordinates as well as with his authorities.
In case the suit has been pursued against you by that of the new employer of Mr. Kay [the Mary, Martin and William PC], there is one thing you could use to defend your stand in the situation. Still basing from the letter you have provided the new employer, it could be read:
...should you have any questions, please do not hesitate to contact me.
At this point, you could say that during the time when Ms. Susie S has already complained about the behaviour of Mr. Kay towards her, the new employer should have taken the initiative to do as you ordered in the letter “to call you for further information about Mr. Kay”; which at this point, I believe they did not do. The case could be pursued, but likely, with strong evidence that you did what you could to help the new employee learn more about Mr. Kay in case they need to, shall make you less-liable on the actions that Mr. Kay has incurred during the his time of employment with Mary, Martin and William PC.