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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.”