Legal Issues Surrounding Writing
Letters of Recommendation
Letha S. Kramer, J.D.
Risk Manager
Carle Foundation Hospital and Carle Clinic
Association
Conflicting Interests

Student v.
Faculty/Letter Writer
 Students want glowing
recommendations
 Letter writer wants to
be honest and comply
with the applicable
laws.
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 Students are not employees.
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.
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.

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.
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.
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.
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.
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.
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.
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
Illinois Immunity Law (con’t)

This law provides no
protection to other
non-employer
reference givers such
as faculty, school
administrators, clergy
and friends!
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.

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.
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.

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.
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.

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.
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.

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.
Final Words:

Write only that which is true and accurate.
 Obtain waivers from residents prior to
writing LOR.
Questions???
Letha.Kramer@Carle.com
(217) 383-1504