An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

Subsequent employers may sue former employers if they do not use reasonable care when providing a positive reference. For example, a school that knows that a former employee had an absenteeism problem should not tell a school that the employee had a good attendance record. In addition, schools should not give references concerning subjects they know nothing about. For example, if the school has no idea whether a former employee is capable of lifting 50 pounds, treading water for 10 minutes, or bending at the waist, it should not inform another employer that the former employee can do any of these things. In Randi W. v. Muroc Joint Unified School District , 239 Robert Gadams, an assistant principal at Muroc Joint Unified School District, was disciplined for sexual harassment which included allegations of sexually touching female students. Gadams resigned from his employment. The District subsequently provided a detailed letter to another school recommending Gadams for an assistant principal position without reservation. Based in part on the letter of recommendation, Livingston Union School District hired Gadams for a vice principal position in one of its middle schools. Soon after commencing his new employment, Gadams sexually assaulted a female student named Randi W. Randi W. filed a lawsuit alleging causes of action for negligent misrepresentation, fraud, and negligence. She alleged that Gadams’ former employer unlawfully induced the Livingston Union District to hire Gadams by unreservedly recommending him for employment and failing to disclose facts it knew about the prior charges of sexual misconduct. The Supreme Court ruled that Randi W. stated a cause of action for negligent misrepresentation and fraud. The court held that in preparing a letter of recommendation, if the representations made would present a substantial, foreseeable risk of physical injury to a prospective employer or third persons , the writer owes a duty to prospective employers and third persons not to misrepresent the facts in describing the qualifications and character of a former employee. However, in the absence of such risk of physical injury, the writer of a recommendation letter has no duty of care towards third persons for misrepresentations made concerning former employees. The court concluded that the letter recommending Gadams for any position without reservation or qualification contained affirmative representations which were false and misleading in light of the former employer’s knowledge of charges against Gadams for repeated sexual improprieties. 240 3. B ACKGROUND R ESPONSE P OLICY All schools need a background information response policy. This ensures consistency in how background information is handled and may provide a defense for the school if legally challenged. Many employers have a policy to provide no information to background investigators while others permit varying levels of cooperation. It is understandable that many employers choose not to provide information for fear of legal defense costs or liability. But even those employers will have occasions—such as requests from police departments—when the law requires them to provide detailed information about former or current employees.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 78