Running head: DAVIS V. THE COMMISSIONERS OF DONA ANA COUNTY

Business Employment Law HRM 510

Abstract
This paper will discuss the case of Davis v. The Board of County Commissioners of Dona Ana County. The outcome assessed will determine employment laws that apply to the selection, development, and management of employees. First, I will discuss the legal issue in the case. Secondly, I will explain why the court concluded that Dona Ana County should be held liable for negligent referral.. Thus, I will explain why it should have mattered that the former employer’s investigation was not able to confirm all of the allegations against Herrera. Finally, this paper will discuss the practical implications that the decision held, and if I am convinced by the court’s claim that this ruling should not make employers more reluctant to provide references.

Davis v. The Board of County Commissioners of Doña Ana County
Introduction
This is the case of Davis v. The Board of County Commissioners of Dona Ana County. In this case, a mental health technician employed by the county was investigated for allegedly sexually harassing female inmates under his authority at a detention center. The investigation revealed inappropriate conduct and the technician was informed that disciplinary action would be sought at a hearing scheduled by the employer. The technician voluntarily resigned before the scheduled hearing. Upon his resignation, the employee asked for a letter of recommendation. Inexplicably the employer agreed , giving the employer a glowing recommendation. The employer was later hired by the psychiatric hospital where he physically and sexually abused a patient. The patient sued the county for negligent misrepresentation, claiming that the psychiatric hospital would not have hired the technician if the county had not given him a favorable recommendation.

Effective employee selection is a vital human resource process. One of the many things that this process encompasses is background checks. Background checks can consist of contacting references, verifying past employment and military service, confirming that necessary degrees, licenses, or other credentials are possessed, checking driving records, checking for criminal convictions, examining credit reports, and inspecting candidates online personas on social networking and other sites. A basic motive for conducing background checks is the potential liability of employers for the harmful acts of the people they hire (Walsh, 2010). With background checks being so comprehensive and the high level of responsibility that employers undertake with hiring a candidate, the likelihood for legal concerns to arise can only be expected. Employers are generally liable for harm inflicted by their employees in the course of doing their job or by negligent hiring of unfit employees who do harm to others. In addition to negligent hiring, past or existing employers can be held liable for negligent referrals. Reference checking has taken on a new importance with the dramatic increase in workplace violence (McCord, 1999). Negligent referrals can be avoided if employers take reasonable care not to misrepresent material facts in the course of making an employment recommendation about a present or former employee when a substantial risk of physical harm to third persons by the employee is foreseeable. Employers that choose to respond to requests about former employees should not do so in a selective and misleading manner (Walsh, 2010).
What was the legal issue in this case?
In the case of Davis v. The Board of County Commissioners of Dona Ana County, a written and verbal referral from an ex-employer, Dona Ana County Detention Center, misrepresented the character and past behavior of an ex-employee. He was accused of inappropriate sexual behavior with female inmates but resigned prior to the conclusion of the investigation. Prior to leaving, his employer wrote a positive endorsement that omitted the allegations, the investigation, and the disciplinary actions. The ex-employee was later hired by the new company, MVH, in part by the great referral received. The employee was later accused of sexual misconduct by a patient at his new job. The patient sued the former company citing that they were liable for negligent referral. The legal issue with this case under New Mexico common law was whether an employer owes prospective employers and foreseeable third persons a duty of reasonable care not to misrepresent material facts in the course of making an employment recommendation about a present or former employee, when a substantial risk of physical harm to third persons by the employee is foreseeable (Walsh, 2010).
Why does the court conclude that Doña Ana County could be held liable for negligent referral?
The court concluded that Dona Ana County could be held liable for negligent referral because the misleading and incomplete information supplied by the Dona Ana County Detention Center employee proximately caused the ex-employee to be hired at MVH and a patient there to be assaulted. MVH's decision to hire the employee was based in part on unqualified, favorable recommendations from the Detention Center. By withholding information regarding the sexual misconduct claims, the recommendation from the Detention Center misrepresented material facts when a substantial risk of physical harm to third parties was foreseeable.
Should it have mattered that the former employer’s investigation was not able to confirm all of the allegations against Herrera?
During the former employer’s investigation, not all of the allegations of sexual misconduct could be confirmed. The report concluded that the ex-employee’s conduct and performance of duty had been “questionable” and “suspect”. I do not believe it should have mattered that the former employer’s investigation was not able to confirm all of the allegations against the ex-employee. When providing a reference, the facts about one’s performance should be shared without prejudice or deliberate exclusion of information. Regardless of the outcome of the investigation, by withholding information, the new potential employer was forced to make a decision of employment without having material information. The written recommendation from the Detention Center Administrator only praised the ex-employee and his verbal recommendation stated that he would rehire him even after he planned on suspending the ex-employee had he not resigned. In no contact with the MHV did the Detention Center mention the ex-employee’s performance of duty as questionable or suspect. By mentioning those things along with the other positives things, MHV could have further investigated the prospective employee’s background and possibility avoided the alleged assault of the patient at MHV.
What practical implications does this decision hold? Are you convinced by the court’s claim that this ruling should not make employers more reluctant to provide references? In the case of Davis v. The Board of County Commissioners of Dona Ana County, the New Mexico Court of Appeals held that the detention center administrator, by providing a referral, had a duty to disclose negative information about the employee. If an employer is going to give a reference on behalf of an employee, it has a duty to include negative information if re-employment of the employee would put him or her in a position to harm others. It also acknowledged that employers have a right to refuse to give any information at all without fear of liability. This type of decision can cause many different practical implications. It could cause companies to put policies in place to protect their employees and themselves. Within companies, there are usually multiple people responsible for completing recommendations. Following this ruling, in order to ensure consistency and protect all parties involved, I’m sure companies implemented policies on how to handle recommendations. There are a few different options that companies can choose from. It can range from anything from saying “no comment” to giving full recommendations. Based on this ruling, I believe employers will be more reluctant to provide references. It is easier to monitor and control reference checking within the company by providing as little information as possible. By only providing basic information such as job titles and dates employed, it forces the prospective employer to utilize other means to learn more about a person’s past performance. If companies do choose to provide detailed recommendations, I would recommend that referrals are done in writing. This will ensure that there is a record of the information discussed. In conclusion, the case of Davis v. The Board of County Commissioners of Dona Ana County set a new precedence for employee recommendations. Although the risk of being sued for defamation exist when employees choose to challenge a reference given by a former employer, the alternative of not sharing all material facts whether good or bad can lead to liability through negligent referral. This case proved that when past employers don’t share material facts, it can lead to the harm of others. I agree with the decision of the court in holding Dona Ana County responsible for the alleged assault of the patient at MHV. Employers should ensure there are policies in place to help prevent negligent referrals and prospective employers should ensure that they are using many different methods for background checks instead of relying solely on reference checks.

References

McCord, L.B. (1999). Defamation v. Negligent Referral: A policy of giving only basic employee references may lead to liability. Thomson Reuters Business Report. Retrieved on April 13, 2011 from http://caselaw.findlaw/nm-court-of -appeals/1458660.html.
Walsh, D. J. (2010). Employment law for human resource practice: 2010 custom edition (3rd ed.). pp. 131-156. Mason, OH: South-Western Cengage Learning.