Legal Issues Surrounding Writing Letters of Recommendation

1. Legal Issues Surrounding Writing Letters of Recommendation Letha S. Kramer, J.D. Risk Manager Carle Foundation Hospital and Carle Clinic Association

2. Conflicting Interests • Student v. Faculty/Letter Writer • Students want glowing recommendations • Letter writer wants to be honest and comply with the applicable laws.

3. Students v. Residents • The applicable laws differ if the person asking for the reference is a “Student” or an “Employee.” • At Carle, in general, the residents are employed by Carle Foundation Hospital during their residency. • Medical Studentsare not employees.

4. FERPA • Family Educational Rights and Privacy Act of 1974 (“FERPA”) • This is a FEDERAL law and applies to students. • Gives students the right to consent to disclosure prior to disclosure of any part of the student’s educational record by the educational institution or one of its employees.

5. FERPA Con’t • Under FERPA, “education records” include records, files, documents and other materials that contain information directly related to a student, which an educational agency or institution maintains or which a person acting for such agency or institution maintains. • A letter of recommendation is considered an education record if a faculty member writes that letter, in his/her role as a faculty member, about the student’s tenure at the University.

6. FERPA Con’t • Provides students with the right of access to your recommendation letters and their complete applicant file. • The majority of schools ask (some require) students to waive access to their letters of reference.

7. FERPA Con’t • Once waived, the student has no right to review the letters of reference. • Why would students waive the right to review? Allows writers to be candid about what they say. • The waiver must be explicit.

8. Laws Applicable to Residents • There are no specific laws applicable to writing letters of reference (“LOR”) for residents (no FERPA equivalent). • There are legal considerations to keep in mind. • Most programs or employers that residents are applying to require the Resident to waive the right to review their LOR.

9. Other Legal Considerations • Right to privacy – specific areas are prohibited from disclosure, such as medical information, age, race, national origin, marital status, sex, religion and disability.

10. Other Legal Considerations • Defamation – verbal (slander) or written (libel) communication that: • Impunges the reputation, ability or character of another; • Is received by a third party; • Is untrue, substantially untrue, or communicated without regard to the truth or falsity of the matter; and • Causes damages to a person • Defenses: truth of the statement, consent to release the information, and the fact that the statement was protected by a qualified privilege.

11. Other Legal Considerations • Qualified Privilege – negative employment references may not be legally actionable if: • The communication is based upon an evaluation of the person’s work and ability; • Is made by someone who has knowledge of the person’s work and ability; • The communication is limited to information which is job-specific; • The communication is disclosed to prospective employers to satisfy legitimate business needs; • The communication is not done with malice or intentional harm; • The accuracy of the information provided is verified prior to its disclosure.

12. Illinois Immunity Law • Provides that “Any employer or authorized employee or agent acting on behalf of an employer who, upon inquiry by a prospective employer, provides truthful written or verbal information, or information that it believes in good faith is truthful, about a current or former employee’s job performance is presumed to be acting in good faith and is immune from civil liability for the disclosure and the consequences of the disclosure.” 745 ILCS 46/10

13. Illinois Immunity Law (con’t) • This law provides no protection to other non-employer reference givers such as faculty, school administrators, clergy and friends!

14. Other Legal Considerations • Negligent Referral – you have a duty to exercise reasonable care when referring a student for employment. • If you know of issues that would make the potential employee dangerous and fail to provide this information to the prospective employer, the employer could bring an action against you for negligent referral.

15. Case Scenario • Need: LOR for senior medical student apply to ER residency programs this year. • Problem: She is in third quartile of medical school class, has had no failures and has passed Step I of USMLE with a score of 205. You find her to be capable but not exceptional. Good interpersonal skills and got along well with everyone. • Student wants you to write “an exceptionally supportive letter” to bolster chances of residency program placement and wants you to allow her to review letter before sending.

16. Concerns: • Credibility – Don’t want to be perceived writing too generous LOR or overstating the qualifications. • Confidentiality – student wanted to see letter. Under FERPA, students may waive right of access to LOR. • Defamation – general rule of thumb, if statement factual, truthful and made in good faith, not actionable as libel or slander. • Do not discuss medical information in a letter of reference unless the student/resident specifically gives you permission to disclose this.

17. Case Scenario #2 • Need: LOR for rising senior (EM3 or EM4) resident who is graduating this year and applying for professional positions in emergency medicine. • Problem: Although has been competent clinically and performed well academically, had concerns interpersonally in dealing with faculty, consultants and ancillary staff in the ED (for example, screaming matches with consultants and conflicts with nursing staff that are documented in the resident’s file). There were several documented warnings from the program director and one instance of counseling and formal probation.

18. Case Scenario #2 (con’t) • Problem (con’t): After probation and a corrective plan of action, resident showed improvement, was released from probation and no additional incidents since that time. • Request: LOR but resident asks that your letter not mention prior interpersonal difficulties. He states will protest any reference to interpersonal difficulties and wants to review the letter before you send it.

19. Concerns: • Practical – you feel you must disclose the prior episodes of interpersonal conflict and the resident’s probationary status. You are concerned that resident may file action for libel, slander or wrongful disclosure of adverse information if you disclose the potentially harmful information about his prior residency performance without his consent.

20. Concerns (con’t): • Access to employment information – can see unless they have waived the right to see the information. • Completeness of communications – unless you can convince resident to permit you to tell the whole story, decline to write one at all. • Liability for being incomplete – negligent referencing.

21. Final Words: • FERPA applies to students. • Other legal concerns apply to residents. • Do not discuss protected class information • Be complete in your evaluation. • If you feel comfortable, allow the student to read the LOR. • E-mail and other electronic communications are never confidential. Be careful in corresponding via e-mail.

22. Final Words: • Write only that which is true and accurate. • Obtain waivers from residents prior to writing LOR.

23. Questions??? Letha.Kramer@Carle.com (217) 383-1504