Employers often shy away from giving negative references

Many employers' problems with troubled workers can stem from the hiring process, because former employers are reluctant to provide more than basic information — dates of employment, position and possibly salary — fearing a defamation lawsuit.

Experts say 39 states grant immunity from liability for good-faith references about a former employee, but that provides only a defense to litigation and does not avoid it.

The Virginia TV station whose former employee killed a reporter and cameraman before taking his own life was reportedly unaware of difficulties previous employers reportedly had with him. The station said in a statement, “As part of WDBJ's standard protocol his background check resulted in positive references.” However, Mr. Flanagan's former news director at a Florida station has reported he was terminated there after he became “pretty confrontational.”

“We have a system that's effectively broken” in the current legal environment, said Gregg M. Lemley, a shareholder at law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis.

“It's a question of weighing the risk of getting sued for defamation against what one might believe is a moral responsibility to advise the prospective employer that an employee might be dangerous,” said Richard D. Tuschman, a partner at Goodz & Tuschman P.L.L.C. in Plantation, Florida.

One way to deal with this is to call a job applicant's former supervisor, said James J. McDonald Jr., regional managing partner with law firm Fisher & Phillips L.L.P. in Irvine, California.

“Many supervisors, if they have a great employee they were sorry to hear have leave, will give a good reference,” he said. But if the employee was a problem, they more likely will provide dates of employment.

Former employers can also convey information in subtle ways, such as “just a pause in a conversation, a deep breath or a question like, "Who else are you considering for the position?'” Mr. Tuschman said. “It sends a clear message to the prospective employer that this perhaps it not the employee they want to hire.”