Do we have a duty to give bad references?

Do employers have a duty to inform prospective employers of former employees who have been discharged for poor and damaging behavior?

Rita Risser's response:

Generally, employers do not have a duty to warn potential employers about poor employees. In theory, you have no special relationship with the other firms that would give rise to such a duty. There are a few exceptions, however.

First, if the employee would be working in a position where they would have access to vulnerable people, such as school children, medical patients, the elderly or disabled, there may be state laws that require notification of any past dangerous behavior such as sexual molestation or assault.

Second, if the employee had a history of violence at the workplace, including fighting or threatening to use a weapon, in some states the courts have held the employer has a duty to reveal that information IF the employer gives any positive information about the employee. For example, in one case the employer said the employee had not been terminated for performance reasons, but failed to mention he had been terminated for bringing a gun to work. When that employee later killed co-workers at the new company, the survivors were able to sue the first company for negligence. However, if the employer had given only neutral information about the former employee, such as dates of employment and job title, then the survivors would not be able to sue.

The third possible exception is if the employee goes to work for a direct competitor of your company. In that case, if a positive recommendation is given and the person performs poorly, an argument could be made that the first employer was foisting this poor performer onto the competitor to get an unfair advantage.

Many employers believe they have a moral duty to tell potential employers about violent employees, even if they don't give out any positive information. As long as what you say about a former employee is true, no matter how damaging it is, it is not slander and you are protected by law.

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