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Davis V. the Board of County Commissioner of Doña Ana County

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Assignment #1 – Davis v. The Board of County Commissioner of Doña Ana County
Lisa Auvil
January 22, 2012
Business Employment Law - HRM 510
Dr. Zelphia A. Brown, SPHR, Instructor

Assignment #1 – Davis v. The Board of County Commissioner of Doña Ana County 1. What is the legal issue in this case? The legal issue in this case is negligent referral (Walsh p 148). Negligent referral is when a former employer gives a positive recommendation that leads to half-truths with regards to the character of a former employee. Liability may be imposed if the referral leads to foreseeable and considerable risk or harm to a third party (McCord 1999). Mesilla Valley Hospital (MVH), a psychiatric hospital in Doña Ana County hired Joseph Herrera (Herrera) as a mental health technician on January 20, 1995. Prior to his employment with MVH Herrera was a detention sergeant and classification officer at Doña Ana County Detention Center (Detention Center). According to the plaintiff Herrera was hired by MVH based on the unqualified favorable recommendations from his former Detention Center Supervisors Frank Steele and Al Mochen. The accuracy of these recommendations is the crux of the Plaintiff’s suit against the County ("Davis v. the," 1999). 2. Why does the court conclude that Doña Ana County could be held liable for negligent referral (misrepresentation)? While employed at the Detention Center in 1993 a female inmate alleged that Herrera had sexually harassed her. Upon this allegation Steele gave Herrera a written reprimand also indicating any other complaints of similar nature could lead to termination. In 1994 another female inmate filed a grievance of sexual harassment stating the incidents occurred between 1990 and 1992. Herrera though denying the allegations was placed on administrative leave while the County Sheriff’s Department conducted an investigation. Steele’s report of the results concluded that not all allegations could be confirmed against Herrera but that his conduct and performance of duty had been questionable and suspect. His recommendation was to demote Herrera and reassign him, seeking the disciplinary action at a hearing scheduled for April 12, 1994. Herrera resigned on April 8, 1994 in lieu of the hearing. Requesting a letter of recommendation, Steele wrote a positive endorsement of Herrera omitting any reference to the investigated allegations only six days after seeking disciplinary action ("Davis v. the," 1999). Restatement (Second) of Torts section 311 (1965), called “Negligent Misrepresentation involving Risk of Physical Harm”, imposes liability on anyone who gives false information to another who reasonably relies on that information, and physical harm results. It can be concluded that when a former employer chooses not to remain silent and elects to recommend former employees they have a common law duty of reasonable care to third parties and prospective employers given the recommendation. 3. Should it have mattered that the former employer’s investigation was not able to confirm all of the allegations against Herrera? Explain your answer. No, Steele’s report made reference to the pornographic video and condoms found in Herrera’s desk as well the observation of him in position of juvenile underwear. The report was concluded with questionable and suspect conduct and performance of duty with Steele’s recommendation for demotion and reassignment. Whether or not Herrera was guilty of all allegations he was found to be of questionable character. 4. What practical implications does this decision hold and explain why this ruling should not make employers more reluctant to provide references? Common law allows for disclosure by recognizing a qualified or conditional privilege against a defamation claim when a former employer makes statements in good faith about a former employee’s performance. It provides the former employer qualified immunity for these good faith disclosures for the benefit of prospective employers and third parties who otherwise may be placed in harm’s way. Most if not all states allow for good faith disclosures when it is done without malice and the information disclosed can be proven to be true and not falsified in any way. It is recommended to have one person authorized to provide references and should be done in writing with the written request of the former employee. Reference letters need to be factual and truthful, documentation in personnel files should back up any statements made ("Job reference shield," 2012).

Reference
Walsh, D. J. (2010). Employment law for human resource practice: 2010 custom edition (3rd ed.). Mason, OH: South-Western Cengage Learning.
McCord, L. (1999). Defamation vs. negligent referral. 2(2), Retrieved from http://gbr.pepperdine.edu/2010/08/defamation-vs-negligent-referral/
Davis v. the board of county commissioner of doña ana county. (1999, July 13). Retrieved from http://caselaw.findlaw.com/nm-court-of-appeals/1458660.html
Job reference shield laws. (2012, January 17). Retrieved from http://www.crimcheck.com/resources/job-reference-shield-laws.htm

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