Why does the court conclude that Don? a Ana County could be held liable for negligent referral (misrepresentation)? (Source: Ch 5, p. 138, Davis v The Board of County Commissioners of Don? a Ana County). The court decided the case against Dona Ana County for the reason that the employee reference or recommendation which was issued by its Supervisor Frank Steele misrepresented the fact of its former Officer Joseph Herrera’s misbehavior while he was still in their employ.
Herrera resigned from work for fear of being sanctioned for inappropriate sexual conduct which he committed against the female detainees in Dona Ana County Detention Center. Despite the fact that the Center knew of how Officer Herrera behaved while he was working with them, Steele managed to provide Herrera an Employee Reference which failed to cite his misbehavior while he was still holding his position as Officer at the Detention Center.
This failure to disclose truthful facts violates one’s reasonable duty of care to prospective employers and other third parties. This is tantamount to negligent misrepresentation which could lead to damage to another third party. By providing a favorable recommendation or reference, Herrera was able to seek employment with another employer where he also sexually abused another co-employee. Had Steele given the correct data to the investigating subsequent employer, an appropriate warning and precaution would have been made upon the investigating employer.
The latter would not have reason to blame the Detention Center if truthful reference was made and still they employed Herrera. As it is, the subsequent employer relied upon the veracity of the employee reference and took the words of Steele with due respect. The court in other cases reiterated the duty of employers to give correct employee reference among each other in order to prevent misbehaving employees from committing the same acts which would result to damage to third parties.
Employers should document all efforts to obtain information on job candidates even when those efforts are not successful. Why is this good policy? The documentation of the recruitment processes is a good policy which supports the legal mandate under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment on the basis of race, color, religion, sex or national origin (Equal Employment Opportunity Laws).
Thus, where it can be shown by an employer that earnest efforts were exerted to contact a candidate who has a pending application with the employer, then the substantial requirement of affording equal employment opportunity would have been satisfied and complied according to law.
Where the opposite is true, the employer may be held liable for denying a candidate an equal opportunity to be considered to the vacant position. It would then be a matter of whose side is more credible. As always, the scales of justice are tilted towards labor whose rights may not be as protected as that of the employer insofar as employment opportunities are concerned.
Thus, to protect its interest, any employer which has an established recruitment standard operating procedure requiring that its recruitment be subjected to proper documentation of the names of candidates, the scheduling of the interviews, the dates when these candidates were contacted, whether these candidates confirmed their availability for interviews or not, whether these candidates showed up for the interview or not, and all such other details should be properly recorded.