Giving References on former employee who was violent

Q. A former employee of your Company is seeking another job and you have received a requests for references. The Company recently terminated this employee for a significant violation of your workplace violence policy. Your company has no policy on giving references, only the practice that HR responds. Should you be concerned about liability for disclosing damaging information, and also putting another employer at risk should it hire this individual. What should I disclose?

A.Employers may be liable if they provide a negative reference for discriminatory reasons or in retaliation for the former employee's complaining of an illegal activity, or if they give a defamatory reference or disclose confidential facts that constitute an invasion of privacy.

Consequently, many employers have established policies under which they provide no references or they supply only basic employment facts such as dates of hire and termination, and position held.

Although such policies may be the safest course, they fail to address the business and ethical reasons for sharing important information. Providing a prospective employer with knowledge-in this instance, that the individual has a propensity for violence-not only might save another employer the time and expenses involved in a bad hire, but ultimately might prevent workplace violence that could cause injury or death.

Thus, you should consider the business ethical reasons for disclosing the adverse information, and you should be concerned about whether your company would be sued by another employer for withholding or misrepresenting information on the former employee's behavior that would pose a foreseeable risk of harm to others. Many states, recognizing employers’ reluctance to disclose such information on former employees, have passed "job reference immunity" laws. These laws will not protect an employer who knowingly gives out false or misleading information, but they protect employers who give truthful, good-faith references to other employers.

You should also work with a professional workplace violence consultant on developing a reference policy and as always have the policy reviewed by a labor attorney.