Negligent referral is a relatively new civil wrong. In a nutshell, it 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 litigation that strongly suggests that a former employer has a duty at least to be honest in comments made about a former employee – so much for hiding behind a “no comment” policy.
Here’s a theoretical example: Suppose you’re the employer and you fire an employee for engaging in workplace violence. Next, you receive a call from an employer who is considering hiring the person you fired and you’re asked why he left. Knowing that he was fired for workplace violence, you respond that the person resigned. Next, suppose that person is hired and injures a fellow employee in an altercation on the job. Now, suppose the new employer sues you claiming that you failed to disclose the real reason for the individual’s departure, alleging negligent referral – that you had a duty at least to be honest about the real reason for the individual’s departure – that you knowingly lied about the reason for the departure.
The precedent has already been set for a jury to find that you gave a negligent referral to the prospective employer that led to one of his employees being injured on the job. Guess who’s going to pay? You are!
This example brings us to the essential point that honesty is always the best policy. But, you argue, what if I had been honest and the former employee sued me because he didn’t get the job? It doesn’t matter because there is an old maxim in law which states, “Honesty is an absolute defense.” In this example, it’s perfectly fine to disclose that the employee was fired, if you’re asked why he left, because it is the truth.