Negligent Referral

What is a Negligent Referral?

Negligent Referral is a claim brought against a professional who refers an employee to another professional in a negligent manner. When an employer is aware that a current or former employee poses a harm to others, but fails to warn other employers, this is known as negligent referral.

What is Negligent Hiring?

A legal claim for negligent hiring is made against an employer. It is filed by a person (i.e., an employee or a client) who has been wounded by an employee who has a history of similar instances. The negligent hiring claim asserts that the employer was aware of or should have been aware of their background prior to hiring them.  

In other words, if you do not thoroughly investigate a candidate's background, you may be held liable for their behaviour. In occupations that require one-on-one care (home health care aide), have access to passwords or keys (real estate agent), or deal with funds, negligent hiring might be the most devastating (bursar).

Steps to consider for avoiding Negligent Referrals

  1. Create a written policy that spells out exactly what is expected of you when it comes to providing references. It should specify who will receive the information and how it will be delivered — by whom, to whom, and in what manner. Make it flexible enough, though, so that you can assess individual circumstances that may create specific concerns.  
  1. On a regular basis, review and update the policy.  
  1. Consider making it a policy that you will only answer to written requests for references and that your responses will also be written. It's best if someone from human resources is in charge of providing references. The information submitted should be based on the employee's file's documented information.
  1. The employer should discuss the employee's performance with him or her on a regular basis, thoroughly document the facts regarding the employee's performance, and exchange information from the employee's personnel file with the employee, according to good employment practice. Only individuals with a clear and pressing need to know should have access to this information. Employees should be aware that any references they receive will be based on the information in the file.  
  1. If you choose to supply verbal information in response to a phone enquiry, obtain the caller's name, title, and phone number, verify that the number is truly that of the company, and then call back to confirm the caller's identification.
  1. Instead of volunteering information, consider simply confirming information provided by employers requesting references.  
  1. Obtain a written release from the previous employee authorising the provision of references wherever possible. When an employee is employed, he or she may be required to sign a release of liability. Although this will not provide perfect protection, it may assist the former company in arguing that the employee consented to the information being published.  
  1. Date and time; name, title, and company of the person asking the information; name and title of the person answering; an explanation of the information provided, and the form in which it is provided should all be recorded when a reference is given. This is when a standard form comes in handy. Please include copies of any letters you've written.
  1. Except in circumstances when the employee's behaviour could harm the well-being of others in the workplace, the best recommendation for employers is to say as little as possible or to just verify employment dates and titles.

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