What should companies do about dangerous employees?

Editor’s Note: Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him on Twitter: @PhilHollowayEsq Megan W. Grout, who is of counsel to Holloway’s law office, contributed to this article. The opinions expressed in this commentary are theirs.

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Philip Holloway: Keeping quiet about a former employee's true nature is about fear and money

Could death and injury be avoided if past employers were more forthcoming about a potentially violent employee?

CNN  — 

It’s called passing the trash. Keeping quiet about a former employee’s true nature is about fear and money.

Violent and criminally-minded employees often move from job to job without anyone raising red flags about their bad experiences with them. Employers are afraid to talk about their unpleasant experiences with the ex-employee for fear of retaliation, either physical or through litigation.

Instead, these past employers give only the most basic information (sometimes called NRS: name, rank and serial number) to the prospective employer who calls for references. Some prior employers, no doubt, silently thinking to themselves, “Lots of luck. You’re going to regret hiring him.” It’s tragic that thought stays trapped behind sealed lips.

It happens every day in this country.

The most recent tragedy occurred in Roanoke, Virginia, where a disgruntled and terminated employee allegedly murdered two journalists on live TV. All three had worked at a local TV station, WDBJ. Reports have surfaced that Vester Flanagan, the alleged shooter, had a history of mental instability.

Philip Holloway

In addition to alleged emotional outbursts at WDBJ, which contributed to his termination, Flanagan had also reportedly exhibited violent tendencies during his short tenure at a local TV station in Tallahassee in 1999.

Yet, when WDBJ checked his references before hiring him in 2012, they received only positive ones, according to the station’s general manager, Jeff Marks.

It’s not clear from reports whether the Tallahassee station was asked by WDBJ about Flanagan’s prior employment. It would stand to reason that since Flanagan held a coveted on-air position in Tallahassee, he would have discussed his experience there as part of his hiring process in Roanoke.

However, since Flanagan had filed a discrimination lawsuit against the Tallahassee station after he was fired there, it wouldn’t be surprising if Tallahassee had been reluctant to discuss Flanagan’s behavior, if they had been asked. It’s much easier, and less costly, for employers to simply say nothing other than “NRS.”

But where does this practice of NRS leave workplace victims and their families? Could death and injury be avoided if past employers were more forthcoming about a potentially violent employee?

It’s a common misconception that the law prevents employers from giving details (such as violent tendencies) during reference checks. There is no such law. Past employers can provide both facts and opinions. However, any such details that a former employer gives could later be the subject of a lawsuit if the former employee sues them for defamation or other types of lawsuits.

That’s why companies choose to avoid lawsuits (even ones they might win) and protect their bottom line over a moral obligation to warn someone about a dangerous person.

Let’s face it – litigation is very expensive and if a business is sued by a former employee and eventually prevails – they will take a huge financial hit. The average employment lawsuit costs around $88,000.

In fact, there have been many state laws enacted that provide some level of immunity to employers, in order to encourage them to be candid about past employees. Nonetheless, research shows that employers still prefer to remain silent, since they believe it’s the safest course of action for their company, and their bottom line. Countless articles still encourage businesses to avoid giving details about past employees.

Clear proof exists that remaining silent about a former employee can have devastating results. In Michigan, employee Jeffrey Allen St. Clair was fired from a nursing home due to extremely violent behavior. He was later hired by Maintenance Management, and subsequently beat a security guard to death while employed there. The nursing home that had previously employed St. Clair admitted it would not provide any prior information other than dates of employment about past employees so Maintenance Management had no idea the danger they brought into their workplace when they hired St. Clair.

After the murder, the security guard’s family sued the nursing home, arguing they had a duty to provide information about St. Clair’s violent past. The Michigan Court of Appeal declined to find the prior employer had any legal duty to provide that information.

Just because it is legal to withhold critical information doesn’t make it right. Duty goes beyond that which the law requires – duty involves a moral obligation and employers should be encouraged to protect the public from potentially dangerous people.

In extreme situations such as violence and mental instability, concern for safety needs to rise above fear of costly legal judgments. Employers must acknowledge that staying silent to save money amounts to putting people’s lives at risk.

By definition, a statement of opinion is not legally considered to be defamation, but a statement of fact if untrue can be. In order to help employers feel free to give candid assessments of former employees, state legislatures can – and should – enact laws granting immunity from defamation lawsuits so long as the employer has a good-faith basis for whatever it has to say about someone. As we saw in real time on live television, lives are at stake.

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