Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

Should You Disclose an Ex-Employee's Improper Conduct?

By Stephanie Rabiner, Esq. | Last updated on

Providing an employment reference for a former employee is always a sticky situation. If the person responding to the request discloses too much information, the employer can end up being sued for defamation or tortious interference with prospective business relations.

But what if that person has disclosed too little information? What if the reference request is for a dangerous former employee? Is human resources obligated to disclose violent or other improper conduct?

Quite possibly yes.

This type of litigation is becoming more common, according to Inside Counsel. Companies are suing when they realize past employers weren't completely honest about dangerous former employees.

The theory, often one of negligent misrepresentation, is receiving mixed results across the country. In a 1997 case, the California Supreme Court held an employer liable when a former employee sexually assaulted a student. The school district knew of past improprieties, but unqualifiedly recommended him for the job.

The panel ruled that a referrer has a duty not to misrepresent facts about a former employee.

In 2008, the 5th Circuit, speaking only to Louisiana law, agreed, but one with caveat. An employer who chooses to do more than just verify past employment must respond truthfully.

Even with a handful of these decisions, employers are still a bit reluctant to discuss a dangerous former employee. They may not have to be. At least 3/4 of states have enacted laws granting employers job reference immunity. No defamation, tortious interference or misrepresentation suits as long as the job-related information is truthful.

Maybe it's time to change company policy?

Related Resources:

Was this helpful?

Response sent, thank you

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard