Negligent referral is a relatively new civil wrong that may contradict the policies that many HR people have always believed. In the proverbial nutshell, negligent referral is the failure of a former employer to disclose information about a former employee that leads to the injury of an innocent third party. Negligent referral represents a whole new line of cases that, in effect, say former employers have a duty at least to be honest in their comments about a former employee – so much for the safety of hiding behind a no-comment policy!
The only way – at the moment – to avoid the specter of negligent referral litigation is not to reveal anything. Let’s walk through a theoretical example. Suppose you’re the employer and you fire someone for workplace violence. A prospective employer calls and asks you why the individual left, and you say, “Oh, he resigned. I suppose he thought he could get a better job elsewhere,” knowing that he was fired for violence in the workplace. Now, suppose the individual is hired and injures a coworker at his new place of employment. Next, let’s suppose the new employer sues you, claiming that you failed to disclose the real reason for that individual’s departure and alleging negligent referral.
There is now precedent that would lead a judge or jury to conclude that you were negligent because you, in effect, lied about the real reason for the departure. Guess who’s going to pay? You are! This theoretical example takes us back to a point we’ve visited before: Honesty is always the best policy. It’s perfectly to disclose the real reason for someone’s departure if you’re asked – because it’s true. And, even if the former employee you fired sues you, claiming he was denied employment because of what you said to the prospective employer, you’ll still win because “the truth is absolute defense.”