Duty to Warn Future Employers

Should a church disclose negative information about a former employee?

Church Law and Tax 1991-03-01 Recent Developments

Employee Relations

• Does an employer have a legal duty to warn future employers of a former employee’s dangerous propensities? That was the issue before a Michigan appeals court in a recent case. A maintenance worker who worked for a nursing home received 24 disciplinary warnings from his employer for conduct ranging from violence to alcohol abuse. Eventually, the worker was dismissed. The worker was hired by another company, and soon after beginning work he savagely beat and murdered another employee. The victim’s estate sued the nursing home, alleging that it had been negligent in failing to disclose to the new employer the employee’s history of violent behavior. The nursing home in fact was never contacted by the new employer, but it acknowledged that it would not have provided any information other than the employee’s dates of employment even if it had been contacted. The victim’s estate asserted that as a matter of law a former employer should have a duty to disclose a former employee’s dangerous proclivities to a new employer—without fear of being sued for defamation. A trial court granted the nursing home’s motion to dismiss the lawsuit against it, and the victim’s estate appealed. A state appeals court agreed with the trial court’s dismissal of the lawsuit. The court observed that “a party cannot be said to owe a duty to protect another party who is endangered by a third person unless there exists some special relationship between the first employer and either the dangerous person or the potential victim. In determining whether there exists a relationship sufficient to impose a duty to act, the societal interests involved, the severity of the risks, the burden upon the defendant, and the likelihood of occurrence must be balanced.” The court rejected the estate’s claim that a “special relationship” exists between an employer and its former employees. It accordingly refused to impose an absolute duty on employers to disclose information about violent former employers to new or prospective employers. On the contrary, “there is a great societal interest in insuring that employment records are kept confidential. It is all too easy to envision a career destroyed by malefic information released by a disgruntled former employer …. [T]o require the release of deleterious information without fear of a defamation suit represents a major change in the law … which is best left to the legislature.” The court further observed that “in today’s society, with increased instances of child abuse and other types of violence directed towards readily identifiable classes of people, we may have reached a point where people should make this type of information known.” This case suggests that an employer has no duty to disclose to future or prospective employers any inappropriate behavior of a former employee, and that it cannot be legally accountable for failing to do so. On the contrary, the court emphasized the “societal interest in insuring that employment records are kept confidential.” But there will be times when church leaders may feel that they have a moral obligation to inform a prospective employer of the misconduct of a former employee. Should they do so? The Michigan court concluded that this would be a “moral or social” duty, not a legal duty. Further, a church that discloses negative information without authorization risks being sued for defamation of character (among other torts). Church leaders who feel that they have a moral duty to disclose harmful information about a former employee to a prospective employer should (1) not do so without a signed release from the former employee consenting to the disclosure of information and releasing the church from liability for disclosing information, (2) communicate only such information as is relevant, and that can be established as fact in a court of law (i.e., no opinions), and (3) consult with a local attorney before disclosing the information. Moore v. St. Joseph Nursing Home, Inc., 459 N.W.2d 100 (Mich. App. 1990).

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