Karen Kidd Aug. 2, 2016, 8:35am


PITTSBURGH — A recent U.S. Court of Appeals for the Third Circuit decision regarding employment references is in line with previous rulings, an employment law attorney says.

The court ruled that a former Werner Enterprises truck driver could not maintain his case against his former employer regarding job references.

"There was not anything particularly surprising about the ruling," David Van Pelt, special counsel in the Labor and Employment practice group at Kelley Drye & Warren’s Los Angeles office, said in a Pennsylvania Record interview.

"Courts have, for many years, recognized that employers are entitled to a privilege in providing truthful information about the conduct and performance of former employees."

In an unpublished decision handed down by the Third Circuit, the appeals court affirmed employers have the right to provide truthful information in a request for references without falling liable to a former employee. The ruling emphasized an employer's conditional privilege when providing information about a former employee to a prospective employer.

"The principal basis for the court’s decision was that the plaintiff, a former employee, did not provide any evidence that the information that the former employer provided to prospective employers regarding his performance was false," Van Pelt said. "Therefore, the former employer’s conduct was privileged under Pennsylvania law."

The case, Bentlejewski v. Werner Enterprises, et al., was filed in 2013 by former Werner Enterprises truck driver James Bentlejewski, who claimed Werner defamed and libeled him, in addition to intentionally interfering with contractual relationships. Bentlejewski's allegations stemmed from Werner's responses to reference requests from two prospective employers.

Bentlejewski went to work for Werner in May 2011 and resigned about a year later, according to court documents. Bentlejewski became a conditional driver associate at Schneider National, which requested Bentlejewski’s accident and driving history report from Werner.

As is required by Federal Motor Carrier Safety Administration (FMCSA) regulations, Werner provided Schneider with employment verification and identified four minor accidents involving Bentlejewski, classifying each accident as preventable. Schneider subsequently notified Bentlejewski that he would not be considered for a driving position.

In March 2013, Bentlejewski began probationary employment with Vitran Express, which also requested Bentlejewski’s accident and driving history report from Werner.

As with Schneider, Vitran received Bentlejewski’s accident and driving history report from Werner, including information about the four minor accidents. Vitran then notified Bentlejewski that his probationary employment would not be continued.

Bentlejewski filed his lawsuit in September 2013, alleging that Werner provided Schneider and Vitran with false and misleading information.

On July 8, 2015, the district court dismissed the case, ruling Werner enjoyed conditional privilege and that Bentlejewski failed to overcome that privilege.

"Most states have similar laws that protect employers in these circumstances, although the specifics of those laws vary somewhat," Van Pelt said.

Bentlejewski appealed to the Third Circuit. Oral arguments were heard in the case May 19. The court handed down its ruling June 28 affirming the District Court's order granting summary judgment to Werner.

The Third Circuit's decision was consistent with rulings handed down in other circuits, Van Pelt said.

"This decision is generally consistent with the laws of other states and the court decisions that have interpreted them," he said. "Although the legal standard required for employers to be liable in these cases varies somewhat, as long as employers provide accurate information regarding their former employees to prospective employers, they should not face legal liability."

Werner would have faced thousands in liability had the Third Circuit ruled otherwise, Van Pelt said.

"If Werner had been found liable to the former employee, its financial exposure, between the employee’s lost wages and emotional distress, could have been well into the six figures," he said.

The ruling is applicable in other industries, Van Pelt said.

"Although there are regulations pertaining to this particular employee, a truck driver, the general principle — that an employer has a conditional privilege that attaches to information regarding its former employees provided to prospective employers — cuts across essentially all industries," he said.

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