The Conspiracy of Silence

A few days ago, a North Carolina school teacher pled guilty to sexually abusing several young boys.  The school where he had previously worked allowed him to quit after it received “verbal complaints” about him.  He is also accused of sexually abusing children even earlier when he worked as a camp counselor in another state.  If his former employers knew that he was abusing children, they did not warn anyone.  You might wonder if this happens often.  You might also wonder why it happens.

Problem employees present two legal concerns to employers.  First, employers want to avoid being sued for wrongfully firing the employee.  Second, employers want to avoid being sued for defamation in connection with a negative job recommendation.  Accordingly, employers will offer a “neutral” job reference if the employee voluntarily resigns and agrees not to file a wrongful discharge suit.  While this approach may protect the employer, it does nothing to protect the next person who hires the problem employee.  

A few years ago, Allstate fired one of its insurance salesmen.  He had made death threats against coworkers and had brought a pistol to the office.  It appears that he cut a deal with Allstate in connection with his termination.  Allstate provided him with a letter explaining that he had voluntarily resigned in connection with corporate restructuring.  Relying on this letter, Fireman’s Fund hired the salesman.  

Things did not work out at Fireman’s Fund.  Shortly after hiring the salesman, the company fired him.  In retaliation, the salesman went on a shooting rampage killing three former co-workers and injuring several others.  The Florida court ruled that the families of the dead and injured could pursue their case against Allstate on the grounds that Allstate had provided a misleading reference letter.

In response to the case, many employers decided not to provide references for former employees.  Concerned that these policies would result in more situations like the Allstate case, many states, including North Carolina, enacted laws giving employers immunity from suit when they provide a reference for a former employee.  It is very important to note that these statutes do not protect a former employer who gives “false” information.  Attorneys for employees simply have to allege that the employer gave false negative statements about their clients.  Accordingly, our statute provides little protection to employers.  Most continue the “conspiracy of silence.”  That silence has contributed to many deaths and injuries.

In a New York case, a grammar school teacher sexually assaulted a child.  The teacher’s previous employer did not warn the grammar school that the teacher had been charged with sexual misconduct while in its employ.

In Michigan, a previous employer failed to warn of its employee’s history of violence and drug use while in its employ.  In his new job, the man beat and murdered a fellow employee. 

In a Minnesota case, a regional church office knew that one of the pastors had sexually abused a child.  Nevertheless, it withheld this information from the local church that hired the pastor.  The results were predictable.

The courts usually rule that absent a “special relationship of moral duty,” former employers have no obligation to warn of dangerous workers.  You would think that no more “special relationship” could exist than that of a school or church and the defenseless children in their care.  Until the courts or the legislature recognize the irreparable harm that current policies cause, children will continue to be raped by repeat offenders and co-workers will continue to fall victim to criminals.

Lawmakers should require employers to report criminal actions committed by employees.  They should also prohibit employees from suing employers who comply with this law.  North Carolina has already taken one step down this path.    Our laws require employers and others to report nurses who are incompetent or dangerous to the Board of Nursing.  The Board regularly receives reports when facilities discipline or fire nurses.  The Board then shares that information with potential employers.  Hopefully, our state will expand the coverage of that law to other settings. Until then, we can expect that children and others will continue to be victimized by the “conspiracy of silence.”