Transitioning Problem Employees
Gips, Michael A., Security Management
Security experts often recommend that companies terminate violent or potentially violent employees by allowing the employees to resign to keep their dignity intact. In that way, violence may be defused. It has also sometimes been suggested that a company even help the employee find employment elsewhere. In these cases, could a company be held liable for telling (or not telling) a new employer that the employee could be violent?
The mere act of helping a violent or potentially violent ex-employee gain new employment raises problems, according to legal experts. Rebecca A. Speer, a San Francisco-based employment lawyer and consultant specializing in workplace violence issues, says that in general there is no legal duty to warn a prospective employer of another company's experiences with an employee. But if the company purports to say something positive about the employee without revealing negative information, it could "trigger a duty to tell the whole truth rather than a misleading half truth," she says.
The key is that a company's efforts to secure employment for an ex-employee might be interpreted as an endorsement of that employee, which could trigger the duty to tell the whole truth--including the violence or threatened violence. As workplace violence attorney Carry C. Mathiason of the San Francisco office of Littler Mendelson puts it, the problem with finding new employment for an employee who threatened or committed violence is that you are affirmatively taking steps that it is more likely that person will be employed by someone else." The former employer could be liable for any violence committed at the new company by the ex-employee if an incident occurs.
On the other hand, employers who assist violent or potentially violent employees in getting new jobs also run the risk of saying too much. Employers especially get into trouble when they speculate that someone is potentially violent. "An employer who is offering information about an employee is advised to focus on actual confirmed behavior rather than an inexpert assessment of potential underlying causes of that behavior," says Speer. Employers risk a defamation suit if they step over the line and start speculating about a person's propensity toward violence. …