You Say it Best When You Say Nothing at All

Be Cautious about Taking Calls from Former Employees

We caution employers against taking calls from former employees or writing letters of recommendation for them, particularly from individuals who were terminated for performance reasons or due to misconduct. While some of these calls and requests may be legitimate, some individuals may be trying to trap an employer into saying something that can be used to the employee's advantage in a planned lawsuit against the company.

An amazing example of the lengths to which some people will go is the case of John Okros, a former employee of the Iafrate Construction Company. Okros filed an Americans with Disabilities Act claim against the company in federal court in Michigan. The jury awarded him $1,000,000 after Okros proved that he was fired due to his disability, Tourette's Syndrome. An explosive piece of evidence that Okros presented to the jury was a call that he made from his home to the Company's Vice President of Operations. Before making that call, Okros assembled a number of friends in his home to listen to the call on a speaker phone. Okros and his friends stated that they heard the Vice President not only tell Okros that he was fired due to his medical condition, but that the Vice President also called Okros a "stuttering prick." However, remarkably, this call apparently never took place.

The defense counsel in the case failed to subpoena AT&T's phone records, and Okros' attorney represented that he tried to get them but that the phone company did not have them. Then, after the jury reached its verdict, the defense counsel decided to subpoena the records from AT&T. The records did exist and they showed that no call was placed to the company's Vice President on the night in question. Actually, Okros apparently made a call to an acquaintance who was willing to pose as the Vice President for the benefit of Okros' friends who were listening to the phone call at his home.

The Sixth Circuit Court of Appeals recently overturned the verdict due to this apparent fraud. The bottom line is that employers must be vigilant about calls and requests from former employees. It would be beneficial to establish a practice or policy that prohibits any person (other than HR) from responding to reference requests or other requests from former employees.

Michael Blickman is a partner in the Labor & Employment Group of Ice Miller, focusing his practice on advising for-profit and not-for-profit employers, including colleges and universities in all aspects of employment, including employment discrimination, union organizing, student and faculty issues, and employment contracts, including non-compete matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.