Negligent Hiring
Bad References
By John Burke (reprint)
Some four months had
gone by since Derek had
been fired. Normally you
would think that if you
were going to suffer the
consequences of a
“negligent hiring” case, it
would occur while the
worker was still in your
employ. But Derek had
almost been forgotten when
the first of his letters arrived
at the plant. Initially,
the letters were addressed
to the Personnel Department,
and complained that
Derek had been unjustly
fired; that he had been discriminated
against; and that
he was owed some
“severance pay.”
As the weeks went on,
Derek began to leave latenight
messages on the department’s
voice-mail. The
tone of the letters and
phone calls became increasingly
hostile and
threatening. Derek was
soon directing much of his
anger at the President of the
company. The language of
the letters and calls became
increasingly nasty. But
Derek was smart – none of
the letters contained overt
threats that might fall
within the legal definition
of “assault.”
Derek was smart. He was
probably smart enough to
apply for and get any number
of different jobs within
the company. But, for
some reason, Derek had
chosen to apply for an entry-
level job in the mail
room. He quickly mastered
the routine, and for the first
few months on the job, he
was doing well. But he
soon began a campaign of
harassment and intimidation
against his co-workers.
He had a menacing scowl.
He hinted about having a
dark past. He bragged
about having friends in
high places throughout the
company. Derek was
warned several times about
his attitude and behavior,
but to no avail. Finally his
supervisor had no choice
but to terminate him. Surprisingly,
Derek went
rather quietly and life began
to return to normal in
the mail room.
The letters continued.
Their tenor was mean and
frightening. Derek suggested
that he knew where
the President lived. The
President became fearful
for himself and his family.
He called us and asked for
help.
We hired a team of offduty
local police to watch
the President’s house. We
took copies of the letters
and voice mail recordings
to local police and filed a
report. We ran a criminal
history check on Derek and
found only one case where
he had slapped his daughter
around and had been
charged with battery – a
charge which was subsequently
dropped. We
talked to the Personnel department
at the plant about
the “background check”
they had run on Derek.
Notes in the files indicated
that each of the four former
employers listed on his application
had verified his
dates of employment, but
had provided little or no
further information on him.
I decided to dig a little
deeper, and so visited each
of those former employers.
Amazingly, the story at
each office was virtually
identical to my client’s. In
each case, Derek had been
hired at a low-level job.
Initially, he had done well,
but soon began to throw his
weight around and had
been fired. In each case,
several months transpired
and there then began a pattern
of vicious, frightening
threats. (We suspect that,
after being fired from each
job, Derek would collect
unemployment compensation
for a few months.
Once the benefits began to
run out and his financial
pressures began to build up,
Derek would undertake his
reign of terror against his
last employer.)
One former employer was
a small company owned by
two brothers. The brothers
had been so terrified by
Derek’s threats that both
had had security systems
installed in their homes.
They had informed local
police about the threats, but
nothing had come of it. In
the meantime, of course,
Derek had applied for jobs
with other companies, and
those companies had called
“the brothers” to verify
Derek’s employment, and
“the brothers” had said,
“Yes, Derek did work for
us from this date to that
date.” Period!
I called and made an appointment
with another former
employer. When I got
there, I was ushered into
the second-floor office of
the Human Resources Director.
Also present were a
young Personnel Manager,
and Derek’s former supervisor.
The HR Director
was in charge and did all
the talking. He listened
politely as I told my tale of
Derek’s latest exploits, but
then gave me the standard
line that “company policy”
forbade him from providing
any information other than
the dates of Derek’s employment.
I tried to explain
that a man’s life might be at
stake here, but the HR Director
was unmoved.
The meeting ended and I
was escorted out of the office
by the former supervisor.
As we reached the elevators,
the supervisor
nudged me and suggested
that we take the stairs instead.
We then stood and
talked in the enclosed stairwell
for fifteen minutes as
the supervisor told me the
“rest of the story” about
Derek. Once again, the tale
was identical to each of the
others. The supervisor
himself had been threatened
by Derek, but this supervisor
was no pushover.
He had gone nose to nose
with Derek, and Derek had
backed off. But not before
the supervisor had found
his car mysteriously
“keyed” in his driveway
one morning.
What we had here was another
classic example of
“employment law” gone
mad. Here we had a deeply
troubled man with an established
history of terrorizing
his former employers, yet
each and every one of those
employers had intentionally
concealed the true circumstances
of his employment.
Each had been only too
willing to pass this “time
bomb” along to the next
with no warning whatsoever.
Some day, when
Derek does kill one of his
former employers, and
when the family of the deceased
sues for negligent
hiring, I am personally going
to inform their attorney
of the names and addresses
of those other companies
who had concealed Derek’s
potential for violence.
It was time for Derek and I
to meet. I called his home
and introduced myself and
told him that we needed to
talk.
I let him pick the place, a
local restaurant. I was
there on time, but Derek
was fashionably late. He
came in wearing his best
scowl. I was not impressed.
I’ve met meaner
dudes than Derek.
(Actually, I suspect that
Derek practices his scowl
in front of his mirror before
he goes out each day.) I
detected a trace of alcohol
on his breath. (This confirmed
my suspicions about
Derek’s substance abuse.
Derek would sit around the
house drinking and brooding
until late at night while
his anger built to the point
where he would make his
nasty calls.) I told Derek
that his threats had to end.
If they continued, I would
take my evidence to the
State’s Attorney’s office
and seek prosecution on
assault charges. I told him
that I knew that he had
done this sort of thing at
each of his former employers.
I said that I knew that
he had a family and that his
arrest and prosecution
would work a hardship on
them.
Derek complained that he
had heard from friends at
his last job that people were
talking about him. People
were saying bad things
about him, including false
reports that Derek had murdered
his wife. He also
complained that someone
had called his aged mother
to tell her
about the
bad things
that Derek
had done. I
promised
Derek that
I would
talk to
management
about
putting out
the word to
employees
that no one
was allowed
to
talk about
Derek or
call his
mother. I
then told
Derek that
I had a personal
question
to ask
him. I told
him that it
was obvious
to me
that he was very bright and
very articulate.
I was mystified that he
would always seek lowlevel
jobs in office services
or the mail room when I
could tell that he was perfectly
capable of handling
more demanding tasks.
Derek’s mood brightened
immediately. He was
pleased that I was perspicacious
enough to recognize
his true talents and capabilities.
He then proceeded
to give me some cockeyed
explanation that these lowlevel
jobs give him opportunities
to visit and learn
about all aspects of a company’s
business. Derek had
fallen for my line like a ton
of bricks. We were now
buddies. Derek said we
had a deal. He would send
no more letters and make
no more calls. We got up
and shook hands and
walked out the door together.
Derek was true to his word
– for about a month. I
came in to work one morning
to find out that Derek
had called my office (late at
night) and had left a threatening
message on our voice
mail. He had then called
the home of one of my coworkers
and had left a vicious
message there, threatening
the co-worker and his
wife. We packed up all our
evidence and headed directly
to our local police
station where we filed
criminal complaints against
Derek.
Derek was arrested the
next day and appeared in
court within the month. He
was found guilty and sentenced
to a term of probation
with the following provisions:
he was to have no
contact with us or with our
business or with our client’s
company or with the
President of that company;
and he was to undergo
court-supervised psychological
counseling for the
term of the probation.
Derek apparently did not
clearly understand the
judge, for, as he passed us
as he walked out of the
court room, he muttered a
profane threat against us.
We immediately reported
the threat to the judge and
she sent her bailiff out into
the hall to grab Derek and
drag him back in before her
bench. She then proceeded
to make it eminently clear
what her order of “no contact”
truly meant. Derek
got the message this time,
and we never heard about
him again. I’m sure that he
is still out there somewhere,
scowling at people.
I earlier blamed the former
employers for failing to disclose
the true circumstances
of Derek’s employments
and terminations. I
also blame my client for
being willing to hire Derek
when they knew or suspected
that they did not
have a full endorsement of
his job history from each of
those prior employers. I
have recommended to
many clients that they put
the onus on the applicant to
provide references from
prior employers or to induce
those prior employers
to disclose the information
requested by the next employer.
I doubt that things
will change though.
