Employment Law for Ministries

  
 

What to Tell Prospective Employers about Worker Misconduct

If one of your employees engaged in misconduct while working for you, you might wonder what to say about it if a prospective employer calls for a job reference. May you reveal the misconduct? Must you? Should you?

At the outset, let’s clarify what we mean by misconduct. For our purposes, it means willful unacceptable behavior, not lackluster work performance. Harassment of a subordinate, theft, disclosure of confidential information, insubordination, and physical aggression are all forms of misconduct. Also, it means job-related misconduct—information that you as an employer would have knowledge of and that a prospective employer would be interested in.

The general rule is that an employer may say almost anything it wants about a worker to a prospective employer. Certainly, the employee’s performance and commitment to the job are fair game for disclosure. You may inform a reference-seeker that a worker was outstanding and talented, or to the contrary lazy, tardy, disrespectful, and unqualified. So, too, you may reveal that an employee engaged in sexual misconduct, code of conduct violations, or lifestyle choices incompatible with an affirmation of faith.

Must you inform a prospective employer of misconduct? Imagine that a worker was physically aggressive and occasionally violent while he worked for you. Are you liable if you didn’t disclose the history of violence in response to a job reference inquiry and, down the line, the employee hurts a coworker in the new job? The answer is almost always no, although this question is best addressed on a case-by-case basis. Like everyone else, an employer can face liability for acting negligently; here, the question is whether an employer could be deemed negligent for withholding compromising information about a worker during a reference check. But an employer is not negligent unless it failed to comply with a legally recognized "duty," and as an employer you owe no duties to other employers or their workers.

Should you disclose an employee’s misconduct to a prospective employer? The answer to this question is understandably more complicated and requires assessing legal risks. Consider:

  • Are you certain that the damaging information to be disclosed is true? If not, potential liability for defamation outweighs the benefits of disclosure. Most states have passed laws that encourage the exchange of candid information about a worker’s performance by immunizing employers from defamation claims based on information exchanged. Under these laws, employers that disclose reference information aren’t liable to the employee, even if the information passed along wasn’t entirely true, as long as the employer didn’t act maliciously. Those laws do not, however, preclude an employee from filing a lawsuit, so, in that event, the employer will have to pay the legal fees associated with bringing an immunity defense.
  • Can you prove the information is true? If not, then it is almost as risky to provide the information as if the information were false. In many misconduct scenarios, there may never be a clear resolution on “what happened.” Sexual harassment allegations are the prime example of this: even thorough investigations often result in a “she said” but “he said” conclusion.
  • If you are providing other information about the worker’s employment, does that information tend to be misleading as to whether the worker engaged in misconduct? It is one thing to remain silent when asked for reference information; it is another thing to make statements that are misleading. 
  • What if you’re asked by a prospective employer whether a worker was ever “accused” of harassment or other misconduct? If an accusation was in fact made, saying so is not defamatory. But if you say that much—“yes, he was accused”—leaving out a finding that the accusation could not be substantiated will be misleading, at best. 
  • Should you at least indicate whether the employee is eligible to be rehired by you? If you routinely document whether departing workers are eligible (or not) for rehire, then telling a prospective employer what your records show on that question is a safe approach.

There are some types of information you should not disclose. Information that pertains to a protected characteristic (race, age, health problems, etc.) should not be disclosed because it is presumably irrelevant in the hiring process. Merely exchanging this type of information might create an inference that it was a factor in a hiring decision. You should also not disclose that the worker engaged in any legally protected conduct, such as that the employee spoke out against discrimination, previously sued you, sought worker’s compensation benefits, or blew the whistle on workplace misconduct. Disclosing information of that kind may lead to claims that you “blacklisted” the employee.

Of course, you may just as often find yourself on the other end of the process, wanting to know as much as you can about an individual before you make the hiring decision. If your procedure calls for the release in response to a reference inquiry only of facts such as position held and dates of employment, don’t be surprised if other employers are doing the same thing.

Please let us know if you have any questions about this topic.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.