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Jan 04

No. 10: Management: Charged with Defamation?

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Charged with Defamation?

Reader Question: One of my lab techs wants to transfer to another lab on our campus. Its PI happens to be a good friend of mine. The employee wants me to provide a good reference, but truth is she is irresponsible and I'm glad to get rid of her. Do I dare write my colleague the truth about his prospective hire? Would I risk being charged with defamation? What about merely "whispering" the situation to him over a drink?

Expert Comments:

There is an old joke that internal transfers are the easiest way to get rid of a marginal employee and make him/her someone else’s headache. Your dilemma really is that “the someone else” is your friend. At the heart of what you want to know is (1) whether there are legal repercussions if you speak your truth and (2) the etiquette around putting a close colleague on the receiving end of your offloaded problem, if you don’t. Maybe even more importantly is what you mean by “irresponsible” and whether that same trait will manifest in your friend’s lab group?

First off, let’s put the legalities in perspective. Defamation is an express or implied claim that puts an individual in a negative light. It has to be printed (libel) or spoken (slander) to a third party (published) to be actionable. There is no doubt that speaking or writing derogatory information about another can provide an opportunity for them to sue you. The good news though is that if you can prove that your statements are true, it is a complete defense and you cannot be held legally liable.

In this case, if you were sued, and could prove the lab tech was irresponsible, you’d be off the hook. But who wants to invite a possible legal entanglement where you’d have to hire and pay a lawyer, even if you are successful in the end? When it comes to references and recommendations, most employers have the same concerns. They often limit their references to the employment equivalent of “name, rank and serial number” to avoid just these types of lawsuits.

An employer asked for a reference for a current or prior employee will most often just confirm the fact of employment and dates of employment, but little else. The reason “mum” is the word, is to avoid lawsuits from the employee, or even a subsequent employer if the “new hire” doesn’t work out well. And yet in many jurisdictions employers can be held accountable for not disclosing information that should have been disclosed to prevent a future employer from suffering the same fate.

For example, a school district who fires a teacher for molesting a child, should disclose that to another potential educational employer who inquires. But if that same teacher was fired for occasional drinking or a bad attitude, it is likely the school district would be advised to not disclose it.

In your case, your statement that your lab tech is “irresponsible” doesn’t quite say what the problem is. If her irresponsibility could be a danger to others, then yes it is worth disclosing that information, but do so in a very specific and narrow way. For example, you might tell your friend: “We discovered that she did not scrupulously follow our protocols on repeated occasions and her work area posed a hazard.” On the other hand, if “irresponsible” means she pushed work off on others, showed up late, or didn’t write reports on time, you may want to phrase your commentary differently. In that case you may want to say that in your lab group, she didn’t take the initiative to do thus and so. Since “irresponsible” is a broad brush term, it’s important to be sure that you use it carefully, even if your colleague is a trusted friend.

There’s also something else you may want to consider here. Just as “beauty is in the eye of the beholder,” sometimes the same person you describe as “irresponsible” may perform better in another research group for a variety of reasons. For example, she may like her new co-workers better, or find the work of the group more appealing. It could also be that she will find your colleague a more agreeable boss and that will help her perform better.

Since it is likely that you will speak to your colleague somewhat candidly, just think through what you say and how you say it. If you stick to reporting your experiences with the lab tech and not assigning broad brush personality labels, you’ll likely stay out of legal trouble. Plus you may give this lab tech an opportunity which is better for her, and better for you. If you just paint her in a bad light, there seems to be little upside for anyone.

Comments by Susan Parker, Esq., President, Corporate Content, Inc

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Comments (30)
written by Concerned, December 29, 2009
You don't say WHY the woman wants a transfer. Is it to escape sexual harrssment by you or another in the lab? Are your negative opinions merely those of a jilted Romeo? Suggest keep your mouth shut and hope your problem moves away.
written by VinoVeritas, December 29, 2009
I can tell your tech irritates you, but have you just been bottling this up inside? You propose having a secretive cocktail with your "buddy" PI to alert him to the tech's "problems". Try this instead: take your tech herself out for cocktails to melt your mutual ice, candidly but politely discuuss her supposed faults in a constructive way, together agree on a compromise solution going forward. Repeat this once a quarter to monitor progress.
written by CautionMary, December 31, 2009
There are some unstable people in the world. and some vindictive ones. Be careful your criticisms do not get back to the employee concerned. He/she may slash your tires or file a false complaint against you. Does your HR dept keep your opinions confidential?
written by Lambs to the slaughter, January 02, 2010
Like most PIs, I had no trainng in HOW to interview prospective lab techs. In fact , our HR dept practically forced my hand by sending me only two (2) candidates. What was I supposed to do--flip a coin? But we were desparate. So, I beg you, when you get admin power, insist the PI be in on the early screening, and demand to see at least 4-5 qualified candidates. Funny enough, HR dept now gets credit for "placing" a new employee, while we are stuck with the continuing "fallout" and risk demerits for low lab morale.
written by Victor, January 04, 2010
1. If you let the truth to be known to your friend, you'll never get rid of your tech. That is why the marketplace is now full of excellent references from current employers. Smart people ask references from past (not current) employers of prospective hires. 2. The policies of our organization (effective 2006) explicitly FORBID employees to give any references, and instruct us, when asked, to refer interested parties to HR. Although bizarre, this rule may be used to our advantage. Say your tech to get reference at HR because you are afraid to be misconstrued praising her, and also tell your friend to ask for a reference at HR. He'll get your real message right at once. 3. By the way, could you prove your tech's irresponsibility to HR in a formal way? 4. Why many people refuse to see the situation for what it is? In most cases this is not an issue of misunderstanding/harassment, this is just an issue of a really irresponsible employee.
written by Mark, January 05, 2010
What have you done with the tech's annual evaluations? These are supposed to be an opportunity for frank discussion and mutual planning to set goals and objectives for employees, including addressing shortcomings in performance. If you've been "nice" and not given the employee honest, constructive feedback, then it is unethical at this point to suddenly get honest behind the employee's back. I agree with other comments about letting HR handle this. If you have documented the behaviors that you find unacceptable, let HR pass that info on to the new PI.
written by Battlefield - Lab, January 05, 2010
The frustration of this PI and the variety of reader's comments ranging from coercing him into silence to suggesting that he pander to an incompetent lab tech are pathetic. HR screeners are basically ignorant of what goes into making a good tech and thus channel horrible candidates from which we are forced to choose. Our productivity suffers from this scenario, our grants are impacted and we as PI's take the hit. This is a ridiculous situation - we need to speak up as Scientists and stop being so ""managed"" by administrators who have NO IDEA about the workings of the discipline. PI's STAND UP and be counted, DEMAND satisfactory work from your tech's - and if they don't provide it document their weaknesses (send to HR if necessary) and fire them (or let HR do the task). My advice to the PI in question - be both a Scientist and a FRIEND - report your observations accurately and responsibly and without fear - don't let the system strip you of your own sense of duty. If you are telling the absolute truth, you will be able to support your statements with evidence - even in a court of law if necessary.....get rid of this tech, honor a friendship and take back your laboratory!!!!
written by Crazy in Alabama, January 05, 2010
Depending on the tech's emotional stability and awareness of your concerns about his/her performance, I might take the bull by the horns and state frankly that you can comment positively on ABC but not about XYZ. As Mark says, if you really have had problems with the tech's work performance, s/he should be aware of that. And if you stick with specifics, it allows him/her to make an informed choice about whether to ask you for a formal reference. If you're not comfortable talking with the tech about it, I'd say leave it to HR. As for your friend... depends on (a) how badly you want to get rid of the tech and (b) how much you trust the friend to stay mum on the off-the-record "badmouthing" of the employee.
written by Hmmm, January 05, 2010
Since all parties involved are at the same institution how can the sharing of information be considered libel or slander?
written by HelpNow, January 05, 2010
You do not have to feel obligated to provide any reference for this employee, but it seems that this employee is oblivious to why you may have objections to giving one (since they asked for one). There are many reasons for underperformance ranging from lack of self-direction all the way to lack of proper direction from supervisors. Just as HR often has a hug disconnect between what is needed for a job in a practical sense, too many supervisors do not know how to lead, manage, motivate and cause self-motivation to occur within their employees. Often when we observe something within someone else that we dislike, it is in some way, on some level a reflection of something within ourselves that we don't want to face. You can be diplomatic by putting the responsibility of the recommendation in the hands of the employee. If they asked for the recommendation, state that you will give it based on how the employee can self-assess their own worthiness on the job. If you agree with their assessment of their own performance, agree to write a bland, simple recommendation. You don't have to give a shining recommendation to someone who was lackluster, but you do have to take a look at what part you may play in the lackluster performance. Perhaps you have not been the best manager, mentor, leader, etc. to this employee? Take stock in any case.
written by RK, January 05, 2010
My opinion is that it's fair and appropriate to provide a list of strengths and weaknesses of the candidate in a reference. Anything else is unproductive for all parties concerned. If the PI is seriously concerned about a lawsuit, then it's simpler to give the briefest of neutral references which will be seen as a big negative by a potential employer but not by any court (I think).
written by pm, January 05, 2010
"you'd be lucky to hire a more responsible tech than the person transferring from my section" - it's all in how you say it.
written by PI in MD, January 05, 2010
Difficult situation. As a relatively new PI I also have experienced the effects of hired personell that did not work out. I also know from other PI's in my institution. Evaluations do not always help, People can be deaf to those or dig in heels deeper. Its hard to get people that are really interested in the work. Also its VERY hard to get grant money and even more devastating to see that your personell does not care about the project and is only interested in a paycheck. I think that you cannot provide unrequested information, but if the prospective new empoyer asks, she should anwer honestly
written by Anonymous, January 05, 2010
"I trust you will give this application the attention it deserves"
written by Howard, January 05, 2010
I would just state that she worked in your lab and leave it at that. If that is all you say, the friend will certainly take that recommendation for what it is.
written by Anonymous, January 05, 2010
I can't believe what I am hearing! Anyone that's ever been in management, school or in any social situation would know how to handle this. There will always be people you will not like or get a long with - GROW UP! A poor manager might say something, shame on him or her. A person may perform better in and with a different group. That’s personal. Your own inability to work and get along with others will be the only message sent. I you can't say anything nice or Positive, SHUT UP! Or better yet, what if you wanted to transfer to another group and someone you were working with treated you this way... How you like it. Pick your shortsighted self-center head up and THINK. You’ll be a better person because of it. What is WRONG; Treat others, as you would like to be treated. Don't take yourself so serious, do take others more seriously.. If your offended, get over it! If you agree, your a brave sole.
written by msg, January 05, 2010
A serious defect in graduate and postdoctoral training in biological sciences is the narrow focus on generating data and the neglect of the skills actually needed to be a successful PI, specifically scientific-especially grant-writing and lab management. The problem described here would have been avoided by good management. Employee expectations need to be appropriate to the position and the skills the employee brings-do not expect the same performance from a new graduate student and a senior post-doc. Performance goals need to be stated at the start of employment and regularly reviewed using CONSTRUCTIVE criticism. Exceptional performance, whether unsatisfactory (or, more importantly) excellent, needs to be acknowledged and discussed between the PI and the employee AT THE TIME THE BEHAVIOR OCCURS. A discussion of unsatisfactory behavior needs to include a remediation plan, timeline for improvement and a scheduled follow-up meeting. Exceptional performance deserves reward. In either case both the behavior and the discussion should be recorded in writing, signed by the PI and employee and be added to the personnel file. PIs are responsible for TRAINING their lab members. This is a learning experience, thus mistakes will be made. These mistakes and/or shortcomings can be constructively corrected and that the performance of their individual employees and their lab as a whole can improve, with good management.
written by honest abe, January 05, 2010
This person wrote"" Concerned You don't say WHY the woman wants a transfer. Is it to escape sexual harrssment by you or another in the lab? Are your negative opinions merely those of a jilted Romeo? Suggest keep your mouth shut and hope your problem moves away. Dec 29 2009 1:27PM"" Are you for real? why would you assume all of that? what a nut job
written by Robin, January 05, 2010
A friend once asked my opinion about a former colleague he was considering hiring. I had not been impressed by the person in question when we'd worked together and, incidentally, had had a very unpleasant interaction that involved this person. Because I felt my opinion might be unfairly negative, I told my friend I felt unable to give him an unbiased opinion and must therefore decline to answer. My reasoning was that if others had had more positive experiences, they would say so and everyone would be better off than if I'd spoken up. On the other hand, if everyone declined to answer (as I had done), my friend would most likely hire a different person. In the end, he hired a different person. I've never asked him about that, and neither of us has ever since raised the subject of the person I declined to discuss.
written by bab, January 05, 2010
There are four interested parties here. 1) your institution 2) you 3) your tech and 4) your buddy. 1) It is your institution, not you, that will be sued if the issue of defamation arises. They are only vulnerable to what you put in writing. So don't put anything in writing that might be unfair to your tech. Be honest, and stick to the facts- what they did and how long they took to do this. Do not use emotional language. 2) You don't want this person in your lab- fair enough. Simply not having the right personal chemistry can be enough to harm productivity. You are also a leader- you are captain of a small ship. You must, rightly or wrongly, acknowledge that you failed to get the most out of this person. You must take this blame upon yourself- YOU are responsible for the performance of everyone in your lab. Look at what went wrong, and learn from it. You will never make a great leader if you do not take personal responsibility for the performance and welfare of every person in your lab. 3) This tech may indeed have uncorrectable problems. But be open to the possibility that they might flourish in a different environment. If they dislike or distrust you, even though it is ultimately self-destructive to do so, it is only human nature for people to delibrately withold their best efforts from a PI they no longer trust or respect. Indeed, they may delibrately over-perform in the new lab simply to "prove you wrong". That would be great for them, and for the new employer as well. If this happens, be gracious in defeat. 4) I presume this buddy is friend, and thus you must be totally honest with them. Do this off the record, as a communcation between friends, not professionals. But give them all the information so that they can make an informed choice, and cannot later feel that you betrayed them by not telling them something.
written by engelaufurlaub, January 05, 2010
I am shocked at how nasty some of the people on this board are being to the PI. Although there are certainly problematic PIs, and it is conceivable that this individual might do better in another setting, it is also obvious that there are MANY irresponsible (and in some cases downright personality-disordered) employees out there. Nothing in what the PI has written suggests that he/she is the problem here, so why are all of you assuming that this must be the case? (Makes me wonder whether the people posting to this board are actually PIs themselves, especially given some of the egregious mistakes in their writing.) Having dealt with problematic employees and students myself, I can sympathize with this dilemma. I think if the colleague/friend is at all intelligent, s/he will understand (and act accordingly) if the PI says something like, ""Due to legal considerations, I am unable to provide you with any information about so-and-so's employment with me other than job title and dates of service."" I can't imagine that this statement would be libel, yet gets the message across very nicely.
written by random_opinion, January 05, 2010
Just don't write a letter. That says it all.
written by George Spaeth, January 05, 2010
The initial response points to one of the reasons why the world is in such a mess. Susan Parker say that the probLEM is that you do not want to unload a bad employee on your friend, but it is perfectly fine to harm somebody else by having them take your bad employee off your hands. SHE IS OFF BASE. The way to handle the issue is really very simple. You say, ""I don't think you want me to write a letter for you, because I would not be able to write things that would be likely to help you get a job. Perhaps you could find somebody else to write you a favorable letter, but I can not do that."" That response is honest, it is responsible, it may help the employee realize that she had better shape up, etc. I am frankly appalled at the irrespohnsible, ""cover your ass"" comments that have been given. There seems to be no concern for the employee or the potential employer. What happened to the golden rule??? One of the best things about the golden rule is that IT WORKS!!!
written by Anonymous too, January 05, 2010
I'm not sure if I took the right approach many years ago, but here is what I did regarding one of my problem grad students who wanted to pursue her PhD in another department on campus after completing her MS with me. A "non-traditional" (40-something) student, she came in as a PhD student directly from a late-in-life BS at another institution. She loved to TA and consequently put very little time into research, despite frequent reminders. (This was before my institution/department required formal annual appraisal for students, and like most young PIs, I had no training in personnel management.) Based on her poor performance in writing her thesis proposal and on her written and oral qualifying exams, I eventually (~3.5 years, much too long I realize now) told her as gently but clearly as possible to finish with a MS rather than PhD. She did finish her MS, although it was a painful process. Then, to my surprise, she applied to work toward her PhD with someone in another department at my institution. I don't think she asked me for a reference, but this prospective adviser knew that she had worked with me and asked my opinion. I was very honest and explained in detail that, although she worked hard, I felt that she was not PhD material. He said he appreciated my candor, but decided to accept her as a student anyway. I kept up with her progress via her new mentor over the next several years and he told me that everything I had warned him about was true, but with intensive supervision he was able to get her through her PhD. I told her I was proud of her for her persistence. Not what we'd like to see in someone earning a PhD, but perhaps like many PhD recipients, she's never going to be competitive for a research-requiring faculty position anyway. I'd love to hear others' opinions on whether I handled it the right way. I'm back in a similar situation with another non-traditional MS student who is even more helpless (borderline literate wrt thesis writing and analytical thinking ability), which really makes me question my own mentoring abilities; however, some of my other students (and all of my postdocs) have done reasonably well and colleagues tell me it's not me, rather the low quality of students we attract in our department.
written by Tadeusz , January 05, 2010
LET NOBODY BE AFRAID OF TELLING THE TRUTH, under any circumstances; political or under the threat of defamatory lawsuit (I had experienced both threats). On the other hand, let us have in mind that: IT IS NICE TO BE RIGHT, BUT IT IS ALSO RIGHT TO BE NICE; provided, it does not harm anybody. -Tadeusz I
written by Anonymous Mentor, January 05, 2010
We all bear fruits of what we sow! To cultivate a good tech is not a joke. PI need to become humble and first accept that they themselves are not good tech, but may be either good scientist or engineer! Institutionalization of Knowledge is a business & many innovators usually walk all over techs with no respect for the skills that they think are simple or trivial! They expect tech to get unionized and fight and belonging to other socio economic class. As the institutionalization of knowledge is practiced today --- whether it is practiced at universities or in industrial R&D; or think tank or national labs, it is - as vicious as gang wars, and it is a club games as well as game of giving the dues! It is not a pious place where knowledge is free and is offered as worship! The institutional activities require it to be cult, so that it can have a recurring revenue! I do not expect PI in today's world to be a selfless teacher and sage! I hope more lawyers start launching class action law-suites against Knowledge hording institutions in name of teaching and research. Most institutions do exploit power and practice slavery of one kind or another packaged as a requirement! I am a PI and I do see that I have too many lousy colleagues with no skills to mentor any one! They have hardly have any knowledge to know that knowing subject matter and being able to mentor are two totally different galaxies!
written by Dave_n, January 06, 2010
Since I started as a technician out of high school in the 1950s in the UK, gained an external BS, and ended up with a PhD over 40 years ago, I think I might be able to comment a trifle on the operation from a technician's viewpoint and a PI's as well. Unfortunately, in the US, technicians are often looked down upon, particularly if they are HS level only, by people with nominally higher degrees. However, if you can gain the respect of a tech (at any level) by working with them as a colleague and not a ""superior being"", then they will work extremely well for you. One problem that I noticed when I first came here as a post-doc in the late 1960s, was the ""appearance"" (which I then realized was endemic) of an ""Us and Them"" mentality, where PhD and non-PhDs were concerned. Thus in almost every institution that I worked in in academia, graduate students who were part of a PI's lab called their mentor and other faculty by their title, whereas in the UK in the 50s and 60s, you used their first name except when non-members of the institution were present (visiting dignitaries etc.). In industry where I spent a fair amount of my time before joining Uncle Sam, the relative value of techs was recognized by giving new ex-post-docs very experienced (and often higher-paid) assistants (HS through MS level) until the new PhD hire had proven themselves, and first names were almost universally used In the NIH where I have a little bit of experience, first names are almost universal at all levels, except when ""VIPs"" are visiting a lab. I have always encouraged my techs, students, post-docs and colleagues to use whatever form of address they feel most comfortable with at the moment (usually my first name or a diminutive), and rely on their innate senses to use the appropriate one(s) when I am bringing visitors around my labs. If you treat techs and others with respect for their skill sets, you do not have problems.
written by Margaret T., January 06, 2010
Ask your dept Chair for a seminar on the new concept of 360 evaluation. You evaluate your techs, but they also evaluate you. Sounds like your current staff procedures date to the 1950's.
written by Margaret T, January 07, 2010
If you practiced the newer concept of 360 evaluation, wherein you evaluate the techs BUT they in turn evaluate you, I bet a lot of bottled feelings would be ventilated fast. Then a lot of this "need to transfer" would dissipate. Most unhappinesss could turn out to be YOUR errors in supervision! Ask your dept chair for a seminar on these new-fangled concepts. Sounds like you're stuck in the 1950's.
written by PI in MD, January 12, 2010
As stated above, being a PI and an mentor are 2 different galaxies. You have to learn to interview, hire the right kind of people and mentor. I made my share of mistakes, but also techs or postdocs working on a project contribute to the success or failure. Personal issues aside, if someone is NOT interested in the project that they are working on, you can twist yourself in as many angles/curves as you can, but the tech/PDF will NOT change. Interviewing is the key. TALK to the previous PI they worked for and find out first hand. Best to ask: ""would you rehire this person if given a chance?""

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