Are there any reasons why an employer would not talk about disruptive workplace behavior as part of a reference check? A reporter asked me that question in the wake of the Virginia shooting deaths of reporter Alison Parker and cameraman Adam Ward.
The incident was an employer’s worst nightmare. A disgruntled former employee murdering two former coworkers as they were on the air filming a story. The question is dicier than it seems.
WDBJ TV station manager Jeff Marks acknowledged at a news conference that the station probably “could screen more” in the hiring process. But he also spoke of the difficulty of getting an honest reference from a former employer. And as Hamlet once said, “Ay, there’s the rub.”
Name, Rank and Serial Number
These days, most employers typically follow a name, rank and serial number approach when asked about a departing or former employee. When a violent incident occurs, that may seem unwise in the extreme. But there are indeed reasons why so many employers follow this approach.
1. Nobody Wants to Get Sued
Chief among them is that no employer wants to get sued. There have been many cases of individuals suing their former employers for giving honest assessments of their behavior. In fact, the troubled ex-reporter turned shooter, Vester Lee Flanagan II, had an extensive litigation history. After WDBJ fired him, he sued the station and asked for the personnel records of 41 employees plus several of his bosses. He also had sued another station that fired him in Tallahassee for racial discrimination.
The fact that a claim may well be frivolous does not necessarily make it less costly to defend in terms of time and lawyers’ fees.
2. Avoiding Confrontation
One unspoken reason why an employer would not detail a former employee’s disruptive behavior might be precisely for the reasons witnessed in Central Virginia. The employer may fear the greatest risk is that the former employee may turn on his or her former coworkers or bosses with a vengeance if he or she gets wind of a negative reference. The thought process is that saying nothing might diffuse matters.
In this case, the employer reportedly had referred the troubled employee to its employee assistance program. And one of the victims allegedly had reported Flanagan to human resources. The station ultimately fired him after less than one year on the job.
Employers often can be caught between a rock and a hard place in handling such situations.
In writing about the shootings, New York Times reporters Erik Eckholm and Richard A. Oppel Jr. note that employers must tread cautiously when dealing with an employee who may have a mental illness. Overstep and you may find yourself on the wrong end of an Americans with Disabilities Act lawsuit. Also, they point out that privacy rights must be respected.
However, if an employee poses a direct threat to the health or safety of his or her co-workers, the employer may be excused from having to make any sort of reasonable accommodation under the ADA.
Background Checks Are Not a Panacea
Background checks can be a useful screening tool. There is a reason why at least 90 percent of employers make use of them, according to the Society of Human Resource Management (SHRM).
But if a person has been a general workplace nuisance who puts coworkers on edge and makes them miserable, that would not by itself show up in any criminal records check.
So as the station manager’s comment at the top suggests, even screening has its limits. And a lack of information from former employers does not make a new company’s job any easier.
Ironically, though, the shooter’s employment history provided more detailed references than most. For instance, an Alabama TV station rejected him for a position there after references called him “exceedingly difficult to work with.”
However, North Carolina employment attorney Robin Shea says there was probably nothing the station could have done to prevent these on-air murders.
What are your thoughts? Could the station have done anything to prevent this tragedy? How does your company deal with volatile employees?